HKSAR v. COLOMA ZENAIDA URSUA

HCMA944/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.944 OF 2004

(ON APPEAL FROM KCCC9879 OF 2004)

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REASONS FOR JUDGMENT

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1. The appellant, a domestic helper from the Philippine, pleaded guilty in the magistracy to one charge of Breach of Condition of Stay and was sentenced to two months’ imprisonment.  The appellant seeks to appeal against the sentence.

2. The facts of the case, as admitted by the appellant, was as follows :

“             At around 0804 hours on 17 June 2004, Immigration Task Force officers found the defendant rolling up a sliding metal gate of a stall named ‘Kai Fat Food Co. Ltd (啟發食品有限公司)’ situated at G/F, 126 Wing Lok Street, Sheung Wan.  Later, the defendant placed some display racks and metal cans outside the stall, and then put bags of goods on the top of them.  Besides, the defendant swept the floors with a broom and cleaned up the display window, goods as well as a writing desk with a cloth thereat.  Subsequent enquiries revealed that the defendant was a domestic helper in Hong Kong.  Case was thus investigated.

2.            Records showed the defendant was last permitted on 29 May 2004 to remain in Hong Kong until 22 June 2006 for employment with a Mr LAM Hon-ming Peter as a domestic helper at a stipulated contractual address in Bonham Road pursuant to a DH Contract No. E512473.

3.            On 17 June 2004, the defendant was however performing odd job duties at the said stall.  Upon interception on the material day, she admitted under caution to have come to the stall to perform the work (subject matter of the charge).”

3. The appellant was represented by counsel before the magistrate and he had mitigated on her behalf.  Counsel pointed out that the appellant had been working in Hong Kong for the same family since 1994.  Her main duty was to look after Mr Lam’s parents, and the employment relationship was good and harmonious.  Counsel said that on the day in question, the appellant had taken Mrs Lam, Mr Lam’s mother, to the shop and despite her injury, Mrs Lam wanted to do some cleaning work.  On seeing that, the appellant took the initiative and helped her out.  Except for that, the appellant had not participated in any actual business transaction of the shop.  It was further said that the Immigration Department might not allow any extension of her working visa in Hong Kong and counsel asked for a suspended sentence. 

4. The magistrate eventually imposed two months of imprisonment, and he said in his oral reasons that :

“Having taken into account all the mitigation put forward by your counsel, I take three months as a starting point.  One-third for discount for your guilty plea; you are sentenced to two months’ imprisonment.”

5. In the Reasons for Sentence, the magistrate had elaborated the basis of the sentence.  He compared the present offence to the case of two-way permit holders working illegally in Hong Kong, which would carry a sentence of three months after trial.  The magistrate said that he could not see any significant difference between the two types of offences, as both involved working illegally and have the same negative effect on the community when the unemployment rate is high.  The magistrate concluded by saying that :

“9.   On the mitigation put forward, there is nothing suggested that the defendant was being coerced or threatened or unwilling in any way in performing the illegal work in question.  Taking into account all the mitigation including the duration during which she was seen doing the work, her clean record etc, I take 3 months as starting point, and reduce it to 2 months to give effect to her guilty plea, therefore, she is sentenced to 2 months’ imprisonment.”

6. The appellant raised three grounds of appeal.  First, he argued that it was wrong to adopt three months as the starting point for this case as it was an isolated event and the work done for a short period of time.  Secondly, counsel complained that the magistrate had asked, in open court, the appellant’s counsel whether the appellant would like to testify against the employer.  This constituted a threat of an enhanced sentence if the appellant declined to do so.  Thirdly, the magistrate should not have compared the case of the two-way permit holders to the case of foreign domestic helpers in Hong Kong.  It was said that there are real differences between the two.  At least the former came to Hong Kong as visitors with the knowledge that they could not take up any work paid or unpaid, but the domestic helpers came with valid visa to work.

7. I believe Grounds 1 and 3 can be dealt with together.  I can see nothing wrong in comparing the two types of cases, especially if the consequence of their conduct is considered.  By taking up work, they have deprived the local workers the chance of employment.  Apart from one reported case of R. v. Rabosa, HCMA721/1995, neither the appellant nor the respondent is able to provide me with any direct authorities on how this subject has been dealt with before.  Rabosa was a case in which the domestic helper was found working at a newspaper stall and he was convicted of the offence of Breach of Condition of Stay.  He was sentenced to two months imprisonment suspended for 18 months.  The defendant appealed against his conviction only and that was dismissed by Gall J.  The case did not involve the consideration of the appropriateness of the sentence, and I do not think that a suspended sentence is appropriate now for this prevalent offence.  I am told by the respondent that  magistrates have generally been imposing prison terms of similar duration for this type of offence, that is two to three months.  I am not persuaded that the starting point of three months in the present case is wrong in principle or manifestly excessive.

8. The second ground of appeal caused me some concern.  According to the transcript, right after counsel had finished the mitigation, the magistrate said, quite bluntly, that :

“Defendant, I have doubt about the version put forward by your counsel as to how you came to be doing the job at the shop in question.  I believe Mr Lam must play a part in it.  I think Mr Lam should be prosecuted.

If the authority invite you to be the witness, would you like to be the witness?

Mr Sher, take instruction from her.  It may have a bearing on her sentence if she is willing to come forward and testify against her employer.  And I believe, in this case, it’s all due to the employer.”

Later, the magistrate explained in his Reasons for Sentence that he found the appellant’s version in mitigation very hard to believe and it was not entirely consistent with what she had admitted under caution.  He commented that clearly her role had been much watered-down.  He said that on the facts before him, he had reasons to believe that Mr Lam had a part to play in all this.  That was why he asked the appellant whether she would like to testify against her employer, but she had refused. 

9. The magistrate explained in para. 5 of the Reasons for Sentence that her refusal to testify would not have any adverse effect on the ultimate sentence but only that she would not have any further reduction in sentence due to her cooperation with the authority in bringing other offender to justice. 

10. If the learned magistrate felt so strongly about the account put forward in mitigation being a distortion of the true position, and if the issue would seriously affect the sentence to be imposed, the best way was to inform the defence so that they can consider calling evidence.  However, the focus of sentence should be on the appellant and not on a third person who was not before the court.  Even if the magistrate suspected that the employer had something to do with the offence, he could suggest investigation, but not to make a pronouncement that he had a part to play, that he should be prosecuted, and that it was all due to him.

11. How the magistrate could reach such a conclusion based on the few facts admitted by the appellant was not easy to understand, but such firm statements are clearly inappropriate.  While being robust has its virtue but a magistrate must be cautious not to cross, or not to be seen to be crossing, the proper demarcation of the judicial role.  If a magistrate suspects that a related third party’s involvement should be investigated, he can say so.  He may ask defence counsel whether there is any indication that his client may wish to assist the authorities if there is any or any further investigation regarding the possible involvement of the employer and, if so, he might consider an adjournment as the issue may be relevant to the sentence.  This is, of course, not the only correct approach to raise the subject matter, but whatever wording the magistrate adopts, he should be cautious lest a lay person might think that the magistrate is assuming a different role.  From the way the matter was put, it was hardly surprising that the appellant might think that she would get a heavier sentence if she did not follow the court’s “advice” to testify against her employer.  Still, she chose to say no.  For someone who was said to have been working with the same family harmoniously for 10 years, such a direct “request” from the bench would put the appellant in a moral dilemma.  These matters should best be left to the parties.

12. But having said that, I cannot say that the magistrate had really increased the sentence because the appellant chose not to testify against her employer.  So the appeal on sentence cannot succeed on this point alone. 

13. Leaving the specific grounds aside, I have to say that I am not quite sure whether the three months adopted by the magistrate was meant to be before or after mitigation.  If it is the former, it appeared that the magistrate had not given any credit to the mitigating factor except the plea.  If it is the latter, I do not know what starting point the magistrate had really adopted, but the magistrate’s reasoning seemed to be that three months should be the starting point for breach of condition of stay involving foreign domestic helpers.

14. In the circumstances, I would treat three months to be the starting point and that some consideration should be given to the factors which were mentioned by the magistrate, such as the duration of the work etc.  I was told that the defendant was due to be released in about 10 days’ time.  I would therefore allowed the appeal and reduced the sentence by two weeks.

15. The appeal is allowed to that extent.  The substituted sentence is six weeks.