Director Failing to Pay wages. Community Service: an alternative to Prison.

The Defendant pleaded guilty to 2 offences as follows:

  • Failing to pay wages within due date after termination of employment, contrary to sections 25, 63C, and 64B(1) of the Employment Ordinance, Cap 57; and

  • Failing to pay any sum payable under an award of the Labour Tribunal, contrary to sections 43P(1) and 43Q(1) of the Employment Ordinance, Cap. 57

The Defendant had been the Chairman and Director of the Hong Kong Mercantile Exchange Limited. An employee of the Exchange had not been paid his salary of approximately HK$207,000 for 4 months work. Subsequently he brought a claim in the Labour Tribunal and an award was made against the Exchange. The award was not paid and subsequently the Labour Department issued two summonses against the Defendant.

Prior to sentencing the learned Magistrate had called for a community service order suitability report which stated that in view of the appellant’s “clear record in criminal background, long history of public services, remorseful attitude towards the present offences and adequate family support”, a Community Service Order was recommended. The Magistrate however concluded that there had not been genuine remorse and imposed a prison sentence.

In considering the appeal, Madam Justice Barnes concluded that “one must not lose sight of the fact that the appellant was NOT the employer of [the employee] and… he is not personally liable to [the employee] to make repayment”. And, “once it was conceded that the appellant was not personally liable in law to make payment to [the employee], the three matters relied on by the learned Magistrate ( appellant resided at an expensive apartment; payment of rental of the Exchange’s premises by a creditor; appellant changing his legal team and refusing to engage the Duty Lawyer Service ) could not be used as basis to say that the appellant failed to “prioritize”, thus showing the lack of genuine remorse.

Having considered all the circumstances of how the appellant came to commit the present offences, the remorse he had shown, his outstanding and impeccable record of public services (the appellant was a 57-year-old married man with children with no previous convictions; he was a recipient of the Gold Bauhinia Star and was a Justice of the Peace; he had served on a number of public bodies; he was a member of the Central Policy Unit of the Hong Kong Government in 1993 and 1994; between 2012 and 2013 he served as a non-official member of the Executive Council; he was also the Chairman of the Urban Renewal Authority from 2007 to 2013) and his willingness to perform unpaid work of benefit to the community, the learned High Court Judge was satisfied that the appellant was suitable for the imposition of a Community Service Order. The appeal was allowed and the sentence of imprisonment replaced with a Community Service Order.

The appeal was handled by our Christopher Morley instructing barristers Peter Duncan S.C. leading Lawrence Hui.

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