HKSAR v. LAU YUK PING

HCMA 298/2021

[2022] HKCFI 2677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 298 OF 2021

(ON APPEAL FROM STCC 1899 OF 2020 & STS 5398 OF 2020)

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J U D G M E N T

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1.  The appellant appeared for trial before Deputy Magistrate Wong Heung Yung (“the magistrate”) sitting in the Shatin Magistrates’ Courts on three sets of proceedings; STCC 1899/2020, KCS 512197/2020 and STS 5398/2020. On 14 May 2021, she was found guilty under STCC 1899/2020 of aiding, abetting, counselling or procuring the breach of condition of stay, contrary to s89 of the Criminal Procedure Ordinance, Cap 221 and s41 of the Immigration Ordinance, Cap 115 and by virtue of Regulation 2 of the Immigration Regulations[1] (hereinafter referred to as “Charge 1”) and, under STS 5398/2020, of overcharging commission contrary to ss57(1)(a) and 60(7) of the Employment Ordinance, Cap 57 (hereinafter referred to as “Charge 3”). The appellant was acquitted after trial of the charge under KCS 512197/2020 (hereinafter referred to as “Charge 2”), which was also an allegation of overcharging commission.

2.  On 31 May 2021, the appellant was sentenced to 140 hours of community service on Charge 1 and to a fine of $8,000 on Charge 3. By her Notices of Appeal dated 11 June 2021, the appellant seeks to appeal her convictions[2].

The Prosecution Case

3.  The appellant was a former director and latterly an agent for Talent (Kenya) Company Limited (“Talent”), which was licensed to operate an employment agency and dealt inter alia with the employment of foreign domestic helpers (“FDHs”) from Kenya. PW1 and PW2 were FDHs from Kenya. The appellant was responsible for engaging them to be employed by Cheung Nga Sze (“the Employer”).

4.  According to P5, PW1 entered into a contract of employment with the Employer on 3 December 2018. She arrived in Hong Kong on 28 January 2019, but did not start work for the Employer until 10 February 2019. In the interim, and in breach of her conditions of stay, she worked at the appellant’s home address carrying out domestic chores. Thereafter, PW1 worked for her employer between 10 February and 20 June 2019. She left that employment of her own volition as a result of the manner in which both the Employer and the appellant had dealt with her. Charge 1 covers the period from 28 January 2019 to 10 February 2019, during which PW1 was taken to the appellant’s home and carried out domestic duties such as cooking, laundry, care of a child and car washing. Charge 2 covered the payment of commission which was deducted directly from a Bank of China account belonging to PW1 without her knowledge and which was said to be in excess of the allowable rate.

5.  According to her contract of employment [P6], PW2 entered into a contract of employment with the same Employer on 2 July 2019. In order to obtain that position, PW2 had approached a local agency in Kenya called Khobeshah in early 2018, with a view to being employed in Hong Kong. She paid this agency KSH20,000. About a year later, the agency set up contract between PW2 and the appellant to secure employment for her in Hong Kong. At that time, the appellant told PW2 that she was required to pay a total of KSH153,000 to obtain the employment. Whilst she was still in Kenya, PW2 was told to pay KSH73,000 to ‘Joan’, a local lawyer, which she did. She was then instructed by the appellant to remit KSH77,000 to a Chan Yan Wa in Hong Kong. She did so on 7 August 2019. Chan Yan Wa was the appellant’s daughter. The remaining KHS3,000 was to be paid to a local agent who assisted PW2 in Kenya. Charge 3 concerns the payment of the KSH77,000 to the daughter of the appellant.

The Defence Case

6.  The appellant elected to give evidence on her own behalf. She accepted that she was working as an agent for Talent at the material time. She also accepted she had acted as an agent to employ PW1 and PW2 from Kenya and that they were to be paid a salary of HK$4,520 per month. As for Charge 1, the appellant maintained that the Employer had been too busy to pick up PW1 when she arrived in Hong Kong on 28 January 2019, and that, out of kindness and concern for PW1, the appellant had allowed her to live in her home address until she could contact the Employer to arrange for her transfer. She had had difficulty contacting the Employer and therefore could not arranger transfer until 10 February 2019. The appellant had fed and housed PW1 during that period. At no time had she been tasked with any domestic chores.

7.  In respect of Charge 3, the appellant maintained that the monies had been paid into her daughter’s account in Hong Kong because she did not trust the agency in Kenya not to defraud PW2. Accordingly she sent monies to a different agency called Asanda. She said she had the monies remitted to her daughter’s account because she was not allowed to receive such monies herself. She had remitted the monies back to Kenya in full as Asanda’s commission for the employment of PW2.

Grounds of Appeal

8.  Although not in the usual form, Ms Jolie Chao submits in what is entitled her Perfected Grounds of Appeal:

Ground 1

The trial magistrate erred in accepting the evidence of PW1 as honest and reliable in that the trial magistrate failed to properly analyse all the relevant matters which would undermine PW1’s credibility.

Ground 2

The trial magistrate failed to give proper weight to Exhibit D20[3].

Ground 3

The trial magistrate erred in further amending the Re-Amended summons in STS 5398/2020, causing prejudice to the appellant and resulting in an unfair trial.

Ground 4

The trial magistrate erred in finding the appellant dishonest and unreliable.

And therefore the convictions were unsafe and unsatisfactory.

9.  As to Ground 1, it relates to Charges 1 and 2 and to the evidence of PW1. The thrust of the appellant’s complaint is that the magistrate simply got it wrong. PW1 was not reliable and credible and he should have taken into account the substantial cross-examination of PW1 in respect of the seven witness statements made by PW1 to various agencies, which identified what Ms Chao seeks to suggest are inconsistencies and thereby indicate that she was not a credible witness. This is something covered in detail in her 133-page Closing Submissions. Having been unsuccessful, Ms Chao seeks to rehearse the exact same arguments on the off chance this Court will take a different view even though it does not have the benefit of seeing the witness for itself.

10.  This Court has therefore been obliged to expend a considerable amount of time studying the evidence of PW1 in order to ascertain the defence case in the absence of the appellant’s evidence being provided to the Court. And, having ascertained the defence case, to see whether it was properly put. The main thrust of that case on Charge 1 was that PW1 had simply lied in stating that she had undertaken work for the appellant between 28 January and 10 February 2019. The majority of the cross-examination of PW1 was therefore focused upon a minute analysis of statements made by the witness to the Labour Department which were not tendered into evidence. If their purpose was to show a prior inconsistency, then Counsel did not go about that exercise correctly. Collateral matters which went to credibility alone were doggedly pursued by Counsel when the witness was clearly seeking assist. On each and every occasion she explained why she had given evidence in trial which had not been the subject matter of previous statements or which the defence had misunderstood.

11.  PW1 was a foreign national who had no knowledge of her rights in Hong Kong and was not a lawyer. She had been badly treated over a period of four months by both the appellant and her employer to such an extent that she had no cash available to her even for sanitary products; had no off duty days and had her mobile phone confiscated. Many of the criticisms mounted at her were allegations that she had failed to volunteer information to others, which she later provided in answer to questions in cross-examination. A considerable amount of time was taken up with this approach without success. The only advantage was that the magistrate had more than ample opportunity to assess the veracity of the witness under pressure and did not find her wanting. This ground is without merit.

12.  As to Ground 2, this complaint is in respect of Charge 3 under which PW2 was the substantive witness. The Statement of Findings[4] is an accurate summary of the relevant admissible evidence of PW2. The appellant gave evidence to the effect that she had received the KSH77,000 because she had wanted to ensure that the agency did not overcharge. The appellant had used her daughter to receive the payment from PW2 because she was not allowed to do so herself and had paid the Asanda agency via a friend. PW2 denied any knowledge of Asanda[5]. There was no evidence of any connection between the two. There was no independent admissible evidence of these monies leaving any account in Hong Kong and being remitted to Kenya. Exhibit D20 purports to be a receipt for KSH 77,000. It is clearly documentary hearsay and has not been adduced by the maker of the document. There was no evidence of the monies leaving the daughter’s account to support it. D20 was not put to the witness in cross-examination and yet it states the monies paid have come from PW2. There was of course nothing to prevent the appellant stating orally that she had remitted the monies and why she had done so but the magistrate quite rightly noted that the appellant was not in a position to verify D20 as she had changed phones since the material date and lost all previous WhatsApp messages. D20 on the face of the papers was inadmissible as evidence of the truth and that was the purpose for which it was tendered.

13.  The analysis of evidence in respect of this charge within the Statement of Findings[6] was simple and succinct. There was no issue as to the fact that PW2 had remitted the KSH77,000 to the appellant’s daughter’s account. The defence maintained that PW2 knew that the monies were to be remitted back as commission to the Kenyan agency ‘Asanda’, which she denied. PW2 made no admissions under cross-examination which undermined her evidence in chief and any references by defence counsel to statements made by PW2 prior to trial in order to undermine her credibility were not made good. On each occasion when an extract was put to the witness she agreed its contents. When asked why the contents differed from her current testimony she explained that what the defence now wanted was additional information not asked of her in interview. At no point was defence counsel able to show that the extracts were actually previous inconsistent statements. At best she was able to show that PW2’s current evidence was more complete than it had been previously.

14.  It was clear from her evidence that PW2 had paid the sums which were the subject of the charge to the appellant’s daughter. The appellant chose to give evidence on her own behalf in answer to that Charge but even so, there was no admissible evidence before the Court to support her contention that those sums had in fact been remitted back to Asanda. It was entirely open to the magistrate to accept the evidence of PW2 and to reject that of the appellant. This ground is wholly without merit.

15.  As to Ground 3, this was a complaint that the appellant was prejudiced by the amendment (after closing) of the re-amended charge under STS 5398/2020. The criticised amendment is as to the date at which monies were received from Kenya into the account of the appellant’s daughter. The magistrate amended the charge in accordance with his powers under s27(1)(a)(i) of the Magistrates Ordinance, Cap 227. The charge as originally re-amended read:

“Information has been laid THAT YOU on 7 August 2019 at HONG KONG, being the person purporting to act as a licensee or an associate of a licensee of an employment agency, namely TALENT (KENYA) COMPANY LIMITED, did receive from a job applicant, named ESTHER WANJIKU NJENGA, on account of having obtained, or in connection with obtaining or seeking to obtain employment for that person payment in an amount of $5,611.99 HK$4,779.49, being a payment in excess of the commission that the employment agency is permitted to charge and receive as prescribed by a regulation made under section 62 of the Employment Ordinance, Cap 57.”

In its re-re-amended form, the date on which the monies were received by the appellant was simply changed from 7 August to 9 August 2019.

16.  An amendment may be made at any stage of a trial before verdict provided it can be made without injustice[7]. There was no such injustice here. The was no issue that monies had been remitted to the account of the appellant’s daughter on 7 August. That was admitted at paragraph 10 of Exhibit P1, as too was the fact that those same monies were received on 9 August 2019. The appellant’s defence did not rely upon the date of physical receipt of the monies but rather what she did with the monies thereafter. This was a technical not substantive point, which the magistrate duly and properly dealt with. Whilst Counsel alluded in her closing submissions and on appeal to taking ‘a different approach’ to the appellant’s defence if the amendment had been made earlier, she did not say in what way the defence would or could have been run differently to support her submission that the appellant had been prejudiced by it. This court cannot see how it could have been prejudiced given that the remittance was admitted. There is no merit whatsoever in this ground.

17.  As to Ground 4, the appellant complains that the magistrate should not have found her dishonest and her evidence unreliable. That complaint is premised, Ms Chao submits, upon the reasoning for her acquittal upon the charge under KCS 512197/2020 in respect of the receipt of excess commission from PW1. The appellant submits that this payment was the commission fee for a local Kenyan agency called “Jatar”. If that ‘may be’ true, then that finding should be prayed in aid of her defence under Charges 1 and 3 and the magistrate’s “criticisms become insignificant in the face of the acquittal of offence 2”.

18.  The magistrate considered each charge and the evidence thereon separately as he was required to do. Having done so he found Charge 2 not proved. I would remind Counsel that of the content of the magistrate’s Statement of Findings in this regard. It can be found at AB 189 §86:

“There was no direct evidence to show the relationship between Joan and the Defendant. Although the Defendant’s zealous act as to facilitate the payment of US$1,530 to Joan was very suspicious, I could not draw the only irresistible, reasonable inference that the money was received by Joan on behalf of the Defendant.”

Nothing about his inferential reasoning on Charge 2 is mirrored within Charge 1 or 3, which were premised upon an entirely different set of facts. This argument is misconceived.

19.  As for whether an acquittal on one charge automatically renders findings of fact on other charges ‘insignificant’, one must look to the facts. Those ‘insignificant’ criticisms are covered in 22 paragraphs of the Statement of Findings, in which the magistrate explains in detail why he rejected the evidence of the appellant in respect of charges under STCC 1899/2020 and STS 5398/2020. Examples of why he rejected her evidence are as follows:

As to STCC 1899/2020

“64. The Defendant was running an agency business for money but she agreed she was losing money in getting over PW1 and PW2 and she even provided free food and accommodation to PW1 for some two weeks. She even did not act to collect her eligible commissions from PW1 and PW2, and her advance payment made to PW1’s family. She did not even bother to update her increased eligible commissions from PW1 and PW2 and other domestic helpers on their standard service agreement (see D9).

65. The defendant was enthusiastic to prepare a three-month- future-dated-remittance form, P10, so as to collect commission for the Kenyan agent, but she did nothing similar to secure her own commission receivable from PW1 and PW2…

66. The Defendant said that the Employer did not want PW1 to work with her phone; then why should the Defendant keep the phone? Why not the Employer? Why should PW1 not use the phone when not working? I was sure the Defendant was not telling the whole truth.

67. The Defendant’s own foreign helper left about one month before PW1 arrived. The Defendant could not recall how long this helper worked for her and not even able to tell whether it was a number of months or not. She could not even recall the name of the domestic helper or how she called her. The Defendant had nothing to tell about that helper. I could not believe this.

68. The Defendant backdated D9 to 10 November 2019. The defendant even said the Labour Department knew this already. This was plainly unbelievable…

70. The Defendant said she had no idea of PW1 having to pay the Kenyan agent six times $4,000 via salary deductions. This was totally contradicted by D17A.”

As to STS 5398/2020

“79. PW2 paid the first tranche of her fees in Kenya direct to the lawyer Joan. Yet while PW2 was still in Kenya, the Defendant instructed PW2 to remit the second tranche from Kenya to Hong Kong. The Defendant then arranged to pay Asanda in Kenya.

80. This arrangement was beyond common sense and business efficacy. The Defendant tried to give explanation that Kenyan agents usually overcharged and Kenyan foreign domestic helpers liked to revoke promises. I could not accept this explanation as reasonable. If Asanda ever existed in the picture, what could go wrong if PW2 paid Asanda the money in immediate exchange for the tickets and visa?...

83. The Defendant spoke highly of her service. She went with PW1 to get the Hong Kong ID card and immediately opened a bank account and filled in a remittance form. However, she did not bother to do the same for PW2, when PW2 had no remittance to make. The Defendant did not offer any good explanation.”

Conclusion

20.  The Magistrate painstakingly analysed the evidence before him and the submissions of counsel. He correctly applied the relevant legal principles and, having seen the witnesses first hand, he came to the view that PW1 and PW2 were credible and reliable witnesses. From their evidence and the other admissible evidence before him he was sure of the guilt of the appellant upon Charges 1 and 3 but not sure of her guilt upon Charge 2. In doing so he clearly took a clear and balanced approach to all of the evidence.

21.  This appeal is dismissed. There will be no order as to costs.