HKSAR v. YHUNINGSIH

DCCC 853/2021

[2022] HKDC 275

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 853 OF 2021

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Reasons for Sentence

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1.  The defendant has pleaded guilty to possession of an identity card relating to another person (Charge 1); and fraud (Charge 2).

2.  The facts of the case are straightforward.  The defendant was arrested on 26 January 2021 in Yuen Long, New Territories when she appeared to intentionally evade police officers on patrol.  After she was stopped, she produced a Hong Kong permanent identity card relating to another person, a female surnamed “On”.  She tried to pass herself off as this person.  The police were suspicious because the photograph on the identity card did not resemble the defendant. Upon investigation, it was found to be invalid and she was arrested.

3.  Upon a search of her handbag, the police found a Hong Kong identity card in her name.  They also found a Nanyang Commercial Bank passbook (“NCB”)  and an ATM card in the name of the female surnamed On.

4.  A subsequent inquiry with this female revealed that she had lost her identity card in July 2009.  She did not know the defendant, nor did she open that NCB account.

5.  Under caution, the defendant told the police that she had overstayed in Hong Kong for 4 years and that the identity card she produced as well as that bank passbook and ATM card were in the name of her cousin.  She overstayed here to earn money instead of returning to Indonesia.

6.  Later, again under caution, the defendant admitted that she had actually paid for the identity card and the bank documents 3 years ago.  She paid a man a total of $1,500.

7.  In a subsequent statement, she elaborated further.  She told the police that she had come to Hong Kong to work as a foreign domestic helper in 2006 until 2016.  After that, she remained in Hong Kong to earn money and worked as a dishwasher in a restaurant in Yuen Long for the monthly salary of about $15,000 from 2017 to February 2020.  She used the identity card of Charge 1 to apply for that job.  Her salary was paid into that NCB bank account.

8.  The Immigration Department were consulted and only keeps records of the past 10 years.  They confirmed that there was no foreign domestic helper visa relating to the defendant for the past 10 years before 2021.

9.  The police also investigated her job as a dishwasher.  A company who operated the restaurant apparently engaged 3 females, of which one was the defendant pretending to be the female surnamed On, to wash dishes for the monthly sum of $49,000 to be divided equally between the 3 women.

10.  The first cleaning service contract involving the defendant was for a period between 1 October 2016 and 30 September 2017. 

11.  There was a second similar contract signed for the period between 1 October 2017 and 30 September 2018 for a monthly sum of $50,500 split between the 3 women including the defendant.  There were 2 subsequent contracts for 2019 and 2020.  Only the defendant was named in those contracts, and the monthly sum of $50,500 was paid into her bank account.

12.  This last cleaning contract was terminated by the employer with effect from 2 March 2020 when the restaurant closed down.  NCB bank transactions correspond with those wages referred to above, paid between 2016 and 2020. 

13.  The defendant admits she had in her possession the identity card belonging to another without lawful authority or reasonable excuse and used it for the purposes of gaining employment illegally.

14.  The defendant also admits to dishonestly inducing the staff of the company to employ her, to enter into a number of contracts to provide cleaning services, resulting in a benefit to her in the form of financial remuneration.

Mitigation

15.  The defendant is an Indonesian national aged 42.  She has a clear record in Hong Kong.

16.  I have received written mitigation from Ms Lai and she has said all she can say on behalf of the defendant in mitigation.

17.  The defendant is separated from her husband and has a 20-year-old son who is a first-year university student in Indonesia.  Her son lives with her mother and her younger sister all together in Indonesia. All are financially supported by the defendant.  Her mother had a stroke in 2016 and is now quite debilitated whilst her father passed away in that same year.

18.  The defendant now admits in mitigation that she has overstayed in Hong Kong since her last domestic helper contract expired in May 2008, that is, over 12 years from when she was arrested.  She has not been charged with overstaying in Hong Kong.

19.  It was stressed that although the last 2 cleaning contracts at the restaurant were in her name only, the wages were equally divided between herself and two other dishwashers.  She earned between fifteen to sixteen thousand dollars per month during those 3 to 4 years.

Reasons for Sentence

20.  I have taken into account the facts of these 2 charges and everything said in mitigation.  Her best mitigation is her plea of guilty at the earliest opportunity.

21.  Ms Lai has referred me to the Court of Appeal authorities HKSAR v Li Chang Li [2005] 1 HKLRD 864 as well as HKSAR v Tran Viet Thanh [2013] 1 HKC 1 as guideline cases for the offence of possession of a forged identity card or an identity card relating to another person.

22.  The Court of Appeal held and affirmed that a sentence of 15 months’ imprisonment upon a plea of guilty for possession of a forged identity card by an illegal immigrant was consistent with the previous long-established authorities.  It is reiterated that where the forged card or identity card belonging to another was produced or used to gain employment illegally, the sentence could be enhanced.

23.  In this case, the defendant not only used that identity card belonging to another to gain employment illegally, but she also produced it to police officers to try and pass herself off as someone else and evade arrest.

24.  I find it appropriate to follow the rationale set by precedent.  It would have been a sentence of 12 months for simple possession of another’s identity card but I increase that sentence by 4 months to reflect the fact she produced and used it in order to cover up her identity and legal status in Hong Kong as well as gain employment.

25.  Therefore, I find it appropriate to impose a term of imprisonment of 1 year and 4 months after a guilty plea for Charge 1.

26.  There are no sentencing guidelines for fraud. It has been stressed that she did fraudulently obtain a job and benefit from a salary because she wanted and needed to support her family at home.  There is no loss suffered by her employer or the restaurant.  However, she may very well have been depriving a person legally entitled to work in Hong Kong of that particular job or employment.  I also take into account that it was for a considerable period of time, over 3 years.

27.  I will take a starting point of 2 years and 6 months’ imprisonment for Charge 2.  The defendant is entitled to a discount of 10 months after her plea.  Therefore, the defendant is sentenced to 1 year and 8 months’ imprisonment for Charge 2.

28.  Not only is there a question of totality in considering the two charges, but the fact is they are closely connected and intertwined.  The subject identity card of Charge 1 was used to commit the fraud of Charge 2.  Therefore, it would be harsh to consider anything but concurrent sentences.  I order both sentences to be served concurrently.

29.  Accordingly, the defendant is sentenced to a total of 1 year and 8 months’ imprisonment.