HKSAR v. BALASABAS ELENA ESPINO

HCMA 1075/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1075 OF 2005

(ON APPEAL FROM STCC 10604/2005)

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REASONS   FOR   JUDGMENT

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1.  The Appellant, a Filipina national was found guilty after trial of a breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115.

Particulars

2.  The contravention occurred because her stay in Hong Kong was limited until 5 May 2005 or two weeks after termination of her domestic helper contract, whichever was earlier.  She remained in Hong Kong longer than two weeks after the date her contract terminated, on 11 March 2005.

Admitted Facts

3.  It was admitted that the Defendant had been permitted to remain in Hong Kong until 5 May 2005 or two weeks after the termination of the contract as a domestic helper.  (1) She was aware of the condition of stay.  (2) On 4 May 2005, the Appellant approached the Immigration Department and submitted an application for an extension of stay.  (3) The Appellant had a clear record in Hong Kong.

4.  The Magistrate considered the main issue to be decided was whether or not the Appellant resigned on 11 May 2005.  It was not disputed that the Appellant had written two letters of resignation herself, but the Appellant alleged she had been induced by her employer’s wife to copy the contents of those letters from a piece of paper.  The special procedure was followed to decide the issue of voluntariness in respect of the letters.

5.  The first letter, Exhibit P5, stated that the Appellant terminated her contract with Mr To Tim-shing from 11 March 2005, and that she received HK3,500 from him being return passage to the Philippines and salary for 14 days vacation leave.

6.  Exhibit P4, the second letter, was to the effect that the Appellant terminated her contract with Mr To from 11 March 2005 because she intended to marry in the Philippines.

7.  The employer gave evidence that his wife had told him the Appellant had terminated her contract on 11 March 2005as she planned to marry in the Philippines.  Accordingly, on 12 March 2005, he informed the Immigration Department by posting the two letters notifying the termination of the contract.

8.  She had been paid a whole month’s salary on 11 March 2005.  This was for the period from 20 February 2005 to 20 March 2005.  Prior to this, the Appellant had a good relationship with her employer and his wife.

9.  The employer’s wife gave evidence to the same effect.  She denied she had forced the Appellant to write the letters, as alleged by the Appellant.  She said that the Appellant had returned the house key to her before she left the premises on 11 March 2005.

10.  The Appellant made a claim in the Labour Tribunal after leaving her employment and it was agreed eventually that there would be a settlement, although this was for a much smaller amount than the sum claimed originally.

11.  The Appellant said that she asked for two weeks’ holiday on 11 March 2005; she wanted to marry in the Philippines and intended to return after two weeks.  She said that the employer’s wife gave her two pieces of paper and asked her to copy from them.  She noticed the contents related to termination of the contract but when she made enquiries of the employer’s wife, she was urged to trust her and not to worry, that she would send the letters to the Immigration Department only if the Appellant did not return to work by 5 May 2005, the completion date of the contract.  She claimed she was threatened that if she refused to sign the document, she could not return to the Philippines.

12.  She trusted her employer, so wrote the letters.  On 12 March 2005, she informed her employer that her wedding was cancelled and she wanted the letters back.  The employer refused, but told her that he would not send the letters to the Immigration Department.  She was surprised, when she went to the Immigration Department, and found that Immigration had received the letters from her employer.  She agreed that the content of the letters was unfavourable to her.

13.  After leaving the employment, she lodged a complaint in the Labour Department for outstanding salary, holiday pay and long service pay.

14.  The Magistrate having analysed the evidence concluded that the contract was terminated on 11 March 2005.  She found that the Appellant had not been paid any salary from that time; she did not live in the flat with her employer; she had returned the house keys to the employer on 11 March 2005 and that it was in order for the employer to send a letter to the Immigration Department notifying the Appellant had resigned.  Although the Appellant was fully aware of her condition of stay, she had not observed it and the Appellant was found guilty as charged.

Grounds of Appeal

15.  The Appellant, who represented herself on the appeal, relied on the standard grounds and supplemented them with two others:

(a)     The Magistrate had erred in finding that her employment had terminated on 11 March on her voluntary resignation, which the court accepted would have deprived her of rights to long service pay and other benefits, when the Labour Tribunal had made an award including such benefits and her former employer had consented to such award.

(b)    The Magistrate erred in referring to an alleged omission from the Defendant’s claim before the Labour Tribunal to controvert the evidence given by the employer and his wife at trial by failing to give the Appellant any opportunity to reply and by speculating on the course of the Labour Tribunal proceedings while refusing the Appellant’s application to obtain the record of the Tribunal proceedings.

16.  I note that the record of the Tribunal proceedings were not of any assistance to the Magistrate in deciding whether or not the Appellant had overstayed the contract period.  Nor is any speculation on the course of the Labour Tribunal proceedings set out in the Statement of Finding.  The Magistrate considered the evidence and whether the letters were voluntary.  She found the prosecution witnesses to be honest and reliable and rejected the Appellant’s account of events.  I can find no basis for disturbing the conviction.  Accordingly the appeal against conviction is dismissed.