R. v. PASEOS NORMITA B.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.8 OF 1997

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J U D G M E N T

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1. The appellant was convicted of breach of condition of stay and making a false representation to an Immigration Officer.

2. The facts under which she was sentenced were that on 31st October 1996, Immigration Officers raided a shop in Ocean View Court, Mody Road, where they found the appellant hanging ties on a shelf. She was discovered to be a domestic helper from the Philippines in Hong Kong on a domestic contract of employment. She initially told the Immigration Officers that she had been employed as a domestic servant under contract by one Yau Hung-wai and that she worked for him both as a domestic helper and in his business, which was the business where she was found.

3. Subsequent to that statement she was persuaded by Yau and another man called Chan to retract it and to make a fresh statement to the Immigration Department saying that she had never worked for Yau and had never been connected with him in any way other than by a false contract and that she had worked in the shop completely separate from Yau's involvement. That was the basis upon which she was sentenced and indeed she was asked by the learned magistrate, when he convicted and sentenced her, whether she had ever worked for Yau as a domestic helper and she confirmed that she had not.

4. Subsequent to her conviction and sentence, she attended Immigration Department and made a further statement setting out the true circumstances that she had been contracted to work for Yau and had done so both as a domestic helper and in his shop.

5. As a consequence of that statement, both Yau and Chan were charged with aiding and abetting breach of condition of stay and making a false representation to an Immigration Officer. They pleaded guilty and were convicted. They each received a lesser sentence in overall terms than that imposed upon the appellant. The true situation was not known to the magistrate at the time he passed the sentence and it may well be that he would have drawn a distinction between a domestic employee who works for the employer to whom she is contracted but in breach of condition of stay as opposed to a person who is contracted to a person who is never her employer and she works entirely separately from him.

6. That being so, I allow the appeal against sentence and substitute for the sentence passed by the learned magistrate such sentence as will effect the immediate release of the appellant.