HKSAR v. WONG ERNI WAHYUNING

DCCC 638/2019

[2020] HKDC 387

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 638 OF 2019

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

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

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

REASONS FOR SENTENCE

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

1.  The Defendant is convicted of three counts of Conspiracy to Defraud, namely Charges 2, 4 and 6 on the re-amended charge sheet, and five counts of Using a False Instrument, ie Charges 7 to 11. These convictions were entered after a 10 days’ trial.

Facts

2.  As I have dealt with the facts of the case in some details when giving the reasons for verdict earlier today, I do not think it is necessary for me to go into them again here.  Suffice to say that, insofar as the first three counts, ie Charges 2, 4 and 6, are concerned, the Defendant is found by this court to have conspired with three different foreign domestic helpers to defraud the Director of Immigration and/or his officers by making false representations in their applications for visa or permission to enter or remain in Hong Kong as a domestic helper for what is proven to be bogus employers.  As to Charges 7 to 11, these offences came to light when the Immigration Department conducted further investigation into the files handled by the Defendant’s employment agency.  In five of these, involving four different employers of foreign domestic helpers, the Immigration Department found that the Defendant had used as supporting documents for their visa applications false copies of what purported to be the employers’ bank passbooks (as proof of the employers’ monthly income).  It goes without saying that these are all very serious offences.  I shall come back to this shortly.

Defendant’s background

3.  The Defendant is a 43-year-old lady who was born in Indonesia and who has been in Hong Kong for a long time after her marriage to a Hong Kong resident.  Out of the marriage, they had a daughter who is now 21 years old and is, so I was told, studying at university.  The Defendant and her husband have however separated, although they are still on good terms. 

4.  The court has also been told by defence counsel that the Defendant is, so I quote, “a good person”.  Apart from supporting her daughter, she runs a successful business or ran a successful business until the present case came to light, and she had been making regular contributions or donations to charities back in Indonesia, helping children and members of the disadvantaged there. Now, insofar as the latter is concerned, although no documentary proof has been put before me, I am prepared to accept that as being true and accurate.

Mitigations

5.  In mitigation, it is said by Mr Allan that the Defendant is a self-made businesswoman who has built up a legitimate business on her own.  That business, I was told, has since been closed after her arrest for the present offences. 

6.  It is said also that in respect of Charges 7 to 11, the Defendant could well be seen as doing PW15 to 18 a service, as each was for their own domestic reason desperate for a domestic helper at the time.  All that the Defendant did therefore was to help boosting up their financial standing to ensure as much as possible that their applications for approval to hire a domestic helper would succeed.

7.  In addition, it is said by Mr Allan that the Defendant was simply being foolish in doing what she did, as she is bound to be found out in the course of time.

8.  Lastly, Mr Allan drew my attention to the fact that, in the case of PW1, she had been sentenced only to a term of 3 months’ imprisonment for what in effect is a mirror charge to Charge 1 of the re-amended charge sheet herein.

Sentencing principles

9.  My attention has been drawn by the prosecution to four cases:  three from the Court of Appeal and one from District Judge Remedios (as she then was).  The three Court of Appeal decisions are:  R v Marie Edward Cyril Durup (CACC 194/1986); R v Wong Ho Kay (CACC 232/1995); R vLoh Wah Theam [1997] HKLRD 230.  The judgment from District Judge D’Almada Remedios is the case of HKSAR v Mendoza Zenaida Tabilog and Another (DCCC 1167/2011).

10.  Now, from these decisions, which I have considered with care, it is clear that although there is no sentencing tariff as such for offences under the 2nd, 4th and 6th charge, a starting point of 3 to 4 years’ imprisonment has been considered appropriate for the past two to three decades in Hong Kong. The 1-year term passed in R v Marie Edward Cyril Durup has been considered excessively low.

11.  As repeated, in fact, by the Court of Appeal in the case of R v Loh Wah Theam:-

“In this case he (meaning the defendant in the case) involved others in the use of false documents and he received substantial sums of money. The offences strike at the root of the local system whereby domestic helpers are allowed into the Territory provided they have valid and approved contracts.”

12.  For the offence of ‘using a false instrument’, there is likewise no tariff set by the Court of Appeal.  The sentences, according to my review of the decisions, vary substantially according to the facts of each case. 

The starting point for the present case

13.  Having considered the nature of the present case, the fact that the offences which the Defendant has been found guilty of were committed over a period of four to five years, that they were all clearly well-planned and well-executed, and that the Defendant clearly took the initiative in committing the offences under Charges 7 to 11, I am of the view that for Charges 2, 4 and 6 the lowest starting point the court can take for each charge is one of 3 years’ imprisonment, whereas for each of Charges 7 to 11, the lowest starting point the court can adopt is one of 18 months’ imprisonment.

Totality

14.  Now, having stepped back and taken a global view of the matter, in particular the Defendant’s culpability and the impact of the offences in question, I am of the opinion that a total of 4 years’ imprisonment would have been an appropriate global starting point.

Discounts

15.  Of the various things said by Mr Allan in mitigation, two of them in my view merit consideration. 

16.  The first one is the sentence PW1 received for what appears to be a mirror charge of Charge 1.  Now, obviously this court is not in a position to say whether that sentence is appropriate or not. For, among other things, there are clearly matters which were only made available to the sentencing judge at Shatin Magistracy. What I can say is that the disparity may well give rise to a sense of grievance.  Having said that, however, it is also abundantly clear that one can never simply compare the sentence PW1 had and the sentences which the Defendant receives in this trial.  Whilst PW1 is found guilty on one offence, the Defendant has been found to have committed many.

17.  Be that as it may, in light of the possible sense of grievance the Defendant may well feel, this court is prepared to lower the global starting point by 4 months.

18.  The second matter for which in my opinion a discount could be given is the Defendant’s previous good character.  This is reflected by, first, her clear record in Hong Kong, and also the donations or contributions she has been making to charities back in Indonesia, which, as I said, I am prepared to accept.  For this, I will give the Defendant an extra month discount, making a total discount of 5 months.

19.  In light of this 5 months’ discount, the global starting point will be lowered from 4 years to one of 43 months’ imprisonment.

Sentences

20.  To give effect to the above matters, these are the sentences which I will pass:-

(1) for Charges 2, 4 and 6, the Defendant is sentenced to 3 years’ imprisonment each;

(2) for Charges 7 to 11, the Defendant is sentenced to 18 months’ imprisonment each;

(3) for Charges 4, 6 to 11, I will order 1 month of the terms for each of these charges to run consecutively to the 3 years’ term passed for Charge 2, and they are also to run consecutively to each other, making therefore a total term of 43 months’ imprisonment.