HKSAR v. MERLY CABILANGAN ESPIRITU

HCMA918/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.918 OF 2005

(On Appeal From STCC 6552 OF 2004)

---------------------------

---------------------

-----------------------------------------------------

REASONS  FOR  JUDGMENT

-----------------------------------------------------

1. The appellant was convicted after trial of one charge of ‘Breach of Condition of Stay’ contrary to section 41 of the Immigration Ordinance (Cap.115).  She was sentenced to one month’s imprisonment suspended for one year.  She appeals against the conviction.

Parties and charges

2. The appellant was D1 at trial.  The charge of which she was convicted was Charge 1.  It read :

“ESPIRITU, Merly Cabilangan, on divers days between the 19^th of July and the 13^th of September 2004, in Hong Kong, did contravene a condition of stay in force in respect of you imposed on the 18^th of April 2004 by an Immigration Assistant, in that you were only permitted to remain in Hong Kong for employment as a domestic helper for OR Ching Yan Terry, pursuant to Domestic Contract Helper Contract No. D307947, subject to the condition that you shall only take such employment as approved by the Director, but you did perform odd-job duties at Beauty Paradise Skincare and Slimming Centre at 1/F, 792 Cheung Shan Wan Road.”

3. Or Ching Yan Terry, mentioned in the charge, was D2.  Her husband, Cheuk, was D3.  They were each charged with one charge of aiding and abetting the appellant’s breach of condition of stay (Charges 2 and 3).   Charge 4, the last one on the charge sheet, concerned D3’s alleged employment of someone not lawfully employable and has nothing to do with the present appeal.

4. In the end, both the appellant and D2 were convicted of their respective charges whilst D3 was acquitted of all.

The prosecution’s case

5. Quoting from the magistrate’s Statement of Findings, this was the prosecution’s case :

“5. Admitted facts showed that Merly last arrived in Hong Kong on the 18 April 2004 and was permitted to remain here for employment with D2 as a domestic helper pursuant to a DH Contract No 307947, subject to a condition, inter alia, that she shall only take such employment as approved by the Director.  Clause 4(a) of that contract provides that Merly shall only perform domestic duties at the residence of D2, at Room 517, Lok King House, Lai King Estate, New Territories, and under clause 4(b), Merly shall not take up, and shall not be required by D2 to take up any other employment with any other person. Clause 4(c) states that Clause 4(a) and (b) will form part of the condition of stay imposed on the helper by the Immigration Department, and that a breach of one or both of those conditions will render the helper and/or any aider and abettor liable to criminal prosecution.

6. The prosecution case relied mainly on the evidence of Ms Tong Pui Yee, who worked for D2 at the Beauty Paradise Skincare and Slimming Centre, G/F, Wah Chong Centre from 19 July to 13 September 2004.  Beauty Paradise also had premises on the 1/F, 792 Cheung Sha Wan Road (‘1/F shop’), and during her employment, Ms Tong had to go to the 1/F shop every two or three days to get things, and there, she had seen Merly and a woman called Ling in the kitchen.  On at least five occasions, she had seen Merly boiling and tending to pots of herbal medicine, handling more than one pot at a time. 

7. She said that Merly took medicine from Ling Cho Tong (a herbal medicine shop owned by D2’s husband) to the 1/F shop to be boiled, and later taking the mixture in vacuum flasks back to Ling Cho Tong.  Ms Tong saw Merly doing this once or twice every day, and that it was only Merly who did this, no one else.  Ms Tong had never seen any child at the 1/F shop.

….

13.    The officers who arrived at the scene confirmed that Merly and Ling were found inside the 1/F shop.  Ling was in Hong Kong as a visitor, and was lawfully unemployable [subject matter of Charge 4].  WPC 3087 had arrested and cautioned D2, and under caution she had said certain things.”

The defence case

6. Then there is the defence case :

“15.  All three defendants (including D2’s husband, who was the owner of the Ling Cho Tong) elected not to give evidence, and I took care not to place any adverse inference on this, against any defendant, whatsoever.

16.    The defence case was that the only time Ms Tong had been to the 1/F shop was when she took the police there, and that she had never seen Merly or Ling working there, nor did these two ever worked there.”

The magistrate’s findings

7. In the end, the magistrate was satisfied that :

“14.  The evidence of the prosecution witnesses are credible and consistent with each others, and from their accounts and their demeanour in court, I found each of them to be truthful and reliable.  Any discrepancies in their evidence or between them were minor, and did not go to any material issue.”

8. Regarding Charge 1, she stated that :

“24.  The employment contract expressly stated that Merly should only perform domestic duties at D2’s residence.  From the totality of evidence, I am satisfied that Merly was working in breach of her condition of stay in that she was working by doing non-domestic work (boiling and tending to medicine on a commercial basis), and she was doing this at the 1/F shop (working outside of D2’s residence).”

The present appeal

9. Before me, the appellant claims that Tong Pui Yee lied in her evidence.  She said that Tong was having her revenge for having been terminated from employment by D2.  This point, however, was one that the magistrate had carefully considered, but did not find it to be disturbing :

“12.  Ms Tong readily admitted that she had a dispute with D2 over compensation for a broken beauty machine and that D2 had fired her, and despite this, I was satisfied that Ms Tong’s evidence was not tainted by any revenge or bad feeling.  In fact, I was satisfied that Ms Tong took care not to exaggerate or embellish her evidence.”

10. There is nothing to this appeal and it is dismissed.