HKSAR v. LAM MARILOUS ALIAS MENDOZA MARILOUS T.

CACC 34/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 34 OF 1999

(ON APPEAL FROM DCCC 929/1998)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant was convicted of three counts relating to aiding, abetting, counselling or procuring a person to make a false representation to an Immigration Officer, contrary to s.89 of the Criminal Procedure Ordinance, Cap. 221 and s.42(1)(a) of the Immigration Ordinance, Cap. 115. This was after a trial in the District Court before H.H. Judge C. Chan.

2. The applicant was one of four defendants in the trial below. There were altogether fourteen charges and the applicant was charged with twelve of them. She was acquitted of nine of them.

3. The applicant is a Filipino lady. She was the registered proprietor of an employment agency. Amongst the services performed by the agency was introducing employers to prospective employees who were engaged to perform domestic duties.

4. The case presented by the prosecution was that the applicant was a party to introducing Filipino maids to employers who had no intention of employing the maids. The scheme was that the maids would agree to pay an agreed amount to the applicant who would arrange for a person to act as an phantom employer. These phantom employers would falsely represent to the Immigration Department that they wished to employ the maids in accordance with the terms of contracts the terms of which were agreed by the Labour and Immigration Departments. On the basis of these representations visas would be issued enabling the maids to take up employment in Hong Kong.

5. Shortly before the expiration of the visas some of the employers would make further representations to the Immigration Department so that the visas could be extended.

6. Five Filipino maids were involved in this case. The applicant's three co-defendants at the trial below were all allegedly phantom employers.

7. At the conclusion of the trial the Judge after a careful analysis of all of the evidence acquitted the other three defendants and convicted the applicant on the first three charges.

8. The applicant went into the witness box and dealt with the evidence given by the five Filipino maids who had testified that she had arranged for their employment with fictitious employers. So far as the first three charges were concerned the maid in question was Marjorie Gomez who was PW1. While the Judge was fully mindful of the fact that she was giving evidence after she had received an immunity from prosecution, he was nonetheless satisfied at the appropriate level that she was a truthful and reliable witness. Having regard to the applicant's acceptance of the fact that she did work at the agency he rejected the applicant's evidence that Macrina, the other lady involved with the agency, had been the master-mind and that she had simply been acting upon her instructions. On the basis of the evidence which was before the Judge it was not surprising that he found these charges proved.

9. In her grounds of appeal the applicant simply states that she never gave a false statement to the Immigration Officer. This may be true. What she is charged with is aiding and abetting or counselling or procuring Miss Gomez to make representations to the Immigration Officer concerned.

10. Before us, the applicant said that it was not her who had assisted. It was one of her friends who ran away to the Philippines. She also claimed that the prosecution witness had lied about the matter and that she thought the maid was working for the employer. This was contrary to the findings of the Judge. There was no reason why we should interfere with these findings.

11. There is no merit whatever in this application and it is dismissed. We order that 2 months of the time that she has spent in custody will not count towards the sentence.