Sentence for an employer hiring an illegal worker is challenged in a review A magistrate overstepped his authority by 'rewriting' the length of jail sentences for people guilty of illegally employing two-way permit holders, the Court of Appeal heard yesterday. The submission was made during a review of sentence, mounted by the secretary of justice on behalf of the Department of Immigration. The sentence had been handed down by Magistrate Colin Mackintosh to Ho Mei-wa, 44, last August. Ho, a poultry shop owner, was convicted of hiring a person 'not lawfully employable', contravening the Immigration Ordinance. The court heard that in 1996, the Court of Appeal had set a sentencing guideline specifying 15 months' jail for the offence. But Prosecutor Daryl Saw SC said Ho received a two-month term, suspended for two years, and a $1,500 fine. Mr Saw said when the secretary for justice asked Mr Mackintosh to review the sentence, he accepted that it was inadequate, and said an immediate prison term should be imposed. But Mr Mackintosh then erred by deciding a jail term of merely three months would be an appropriate deterrent, Mr Saw said. The prosecutor argued that sentencing should have real deterrent value, since figures showed an alarming rise in the number of people employing illegal workers. 'It is, in our submission, a little difficult to justify the proposition that three months is now an appropriate deterrent when in 1996 the Court of Appeal said 15 months was the appropriate deterrent,' he said. 'This is a problem now and will be a problem in the future, and any interference with the existing guidelines would be a dangerous course.' He said the starting point proposed by Mr Mackintosh was unduly lenient 'for what are ... serious offences'. Mr Saw said statistics showed the number of illegal immigrants had dramatically declined while the number of unlawful workers had risen. Mainlanders no longer sneaked into the territory, as it was easier to enter legally and gain employment. He fielded questions from the bench over whether a magistrate, with an 'ear to the ground', would know of a wide variety of circumstances that may necessitate different sentencing options. Judges cited examples of a commercial operator recruiting cheap labour versus someone coming to Hong Kong for a few weeks to help out in a relative's shop. Mr Saw said the family story was 'standard mitigation', frequently used by defendants. Chief Judge Geoffrey Ma Tao-li said: 'It concerns me, and it seems to me that the range of situations in which the standard guideline of 15 months should be applied is quite wide.' Mr Justice Ma, Mr Justice Michael Stuart-Moore and Mr Justice Frank Stock adjourned the hearing for further consultation.
