HKSAR v. HERRERA HOMER LEONARDO

DCCC 706/2024

[2025] HKDC 1890

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 706 OF 2024

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REASONS FOR SENTENCE

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Background

1.  D was charged with 25 charges of Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200. He pleaded guilty to a total of 18 charges (which are charges 1, 3-10, 12, 14, 15, 17-19, 21, 22 & 24) and agreed to the amended summary of facts in support of these charges. Upon the prosecution’s application, it was further ordered that the remaining charges (ie charges 2, 11, 13, 16, 20, 23 & 25) are to be left on the court’s file and not to be proceeded with without the leave of the court. 

Facts

2.  The allegation against D, in gist, was that between October 2014 and November 2022, he together with others, arranged for 18 bogus applications for work visa to be made to the Immigration Department of Hong Kong for non HK residents from abroad, to be employed as foreign domestic helpers in Hong Kong. D and his co-conspirators were fully aware that these were not genuine applications and the applicants never intended to work for the purported employers. 

3.  The general fraudulent scheme involved D arranging the false employment contracts between the bogus employers and foreign domestic helpers. In all cases, D prepared the false supporting documents such as proofs of income and address, including IRD tax assessment, utility bills and bank statements of the purported employers, with the use of a computer software to amend the name and other personal details printed on the genuine documents. He also filled in the application forms to be completed by the employer and submitted the documents to the Immigration Department. Each bogus domestic helper would pay D HK$20,000 to HK$30,000 as reward, and D would give HK$10,000 to the bogus employer. 

4.  For certain false visa applications, D worked with others, including Filipino females namely Lyn Cheng, Gina Villareal and Estrada Jo-ann D and an Indian male known as Scott, who acted as intermediaries and referred bogus employers and/or helpers to D. 

5.  It was agreed between D and the said Lyn Cheng that the latter would look for bogus foreign domestic helper while D would prepare false supporting documents. D was promised by Cheng a lucrative reward for each contract. This was the arrangement in respect of charges 5-7, 14, 15, 18 &19. 

6.  In the case of said Scott, he introduced D to the bogus domestic helpers. Scott promised to give D HK$1,500 to HK$2,500 for the latter to provide the required false supporting documents for each application. D provided Scott with the necessary documents in respect of charges 3, 17, 21 & 24. 

7.  The said Gina Villareal was involved in the engagement of the bogus employer in charges 7 and 14, while the bogus employers in respect of charges 3, 8, 12, 15, 18, 19, 21 & 22 were referred to D by the said Estrada Jo-ann D.

8.  The 18 bogus applications were approved by the Immigration Department except in the case of charges 12, 21 & 24.

9.  When the police seized D’s computer at his residence upon his arrest on 25 July 2023, the digital form of some of the false supporting documents was retrieved.

D’s background and mitigation

10.  D is now 42 years old and a Filipino by nationality. He has 2 previous convictions for the same offence as the present case. He is a Form 8 Recognizance holder and a non-refoulment claimant in Hong Kong. 

11.  Mr Sadhwani, counsel representing D, told the Court that D has received education up to degree level in the Philippines and is a qualified accountant there. He came to work in Hong Kong as a musician between 2008 and 2015. Thereafter he remained in Hong Kong as a Form 8 Recognizance holder. Before his arrest, he lived with his father, who is a Hong Kong permanent resident. 

12.  While there is no sentencing tariff for the offence of conspiracy to defraud involving bogus work visa applications, Mr Sadhwani furnished the Court with authorities including R v Marie Edward Cyril Durup, CACC 194/1986 and R v Loh Wah Theam [1997] HKLRD 340 and a series of District Court cases in respect of the sentencing for the said offences. It can be seen that the Court of Appeal considered the appropriate range of sentences for offences of a similar nature to be between 3 to 4 years’ imprisonment. 

13.  Mr Sadhwani urged the Court to exercise discretion in not enhancing the sentence even though D was a Form 8 recognizance holder at the time of the commission of the offences. 

14.  It was submitted that D is genuinely remorseful. He has been very co-operative with the authorities since his arrest and pleaded guilty readily. In his letter of mitigation, D expressed his regrets for having committed the offences and his parents also wrote to the Court to ask for leniency.

Sentence

15.  I have carefully considered the nature of the present case, save in the case of Charge 1, which was committed between 2014 and 2018, the other 17 offences were committed between 2020 and November 2022. The fraudulent schemes were well planned and organized. D took an active role and prepared all the false supporting documents and most of the application papers. He also received lucrative rewards as a result.

16.  Given the nature and sophistication of the offences and the role of D, I am of the view that the appropriate starting point for each of the 18 charges is a term of 3 years’ imprisonment.  

Aggravating factors

17.  Apart from the matters identified above, there are other aggravating features in this case. Firstly, D is a Form 8 recognizance holder. The commission of offences by persons with such status is an aggravating factor where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. I am satisfied that the offences committed by D affect the community at large and has such a significant impact. 

18.  By reason of D’s Form 8 status in the commission of the offences, I enhance the sentence for each charge by 3 months to 39 months’ imprisonment.

19.  Secondly, D was convicted on 2 occasions for the same offence in June 2019 and was sentenced to 9 months’ and 8 months’ imprisonment, with the sentences to run consecutively. Apart from charge 1, he committed the other charges subsequent to these convictions. It is, therefore, apparent that the past sentences imposed on him carried no deterrent effect. 

20.  Applying the principles in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, I am satisfied that, except charge 1, the starting point for sentence for the other charges (ie charges 3-10, 12, 14, 15, 17-19, 21, 22 & 24) should be further enhanced by 3 months to 42 months’ imprisonment. 

21.  Furthermore, as D committed  charges 3-10, 12, 14, 15, 17-19, 21, 22 & 24 within a period of over 2 years, it is a well-established sentencing principle that “where there is more than one offence of a similar nature committed at different times, it is right for the court to award a higher sentence than if there had been only one offence” (see R v Tong Hoi-fung [1988] 1 HKLR 610 at p. 611 and Attorney General v Lo Ching Fai CAAR 12 /1995 at paragraph 14).

22.  In the circumstances, I enhance the sentence for charges 3-10, 12, 14, 15, 17-19, 21, 22 & 24 by a further 3 months to 45 months' imprisonment to reflect this aggravating feature.

Mitigating factors

23.  Upon taking into account D’s timely guilty plea and all the materials before me regarding this case, I consider that a discount of 40% in sentence is appropriate.  The sentence for charge 1 is, therefore, reduced to 23 months’ imprisonment and that the sentence for each of charges 3-10, 12, 14, 15, 17-19, 21, 22 & 24 is reduced to 27 months’ imprisonment. 

Totality

24.  Upon considering the totality principle, I take the view that D’s culpability in these offences should be appropriately reflected in adopting an overall sentence of 36 months’ imprisonment upon guilty pleas.

25.  To give effect to the above, D is sentenced as follows: 

(a) Charge 1 : 23 months’ imprisonment;

(b) Charge 3-10, 12, 14, 15, 17-19, 21, 22 & 24 : 27 months’ imprisonment for each charge;

(c) It is ordered that 13 months of the sentence for charge 3 is to run consecutively to charge 1, and that the sentences for the remaining charges (ie 4-10, 12, 14, 15, 17-19, 21, 22 & 24) are to run wholly concurrently with charge 1 and charge 3, making a total term of 36 months’ imprisonment.