HKSAR v. LAM KWONG CHOY

DCCC 168/2017

[2018] HKDC 771

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 168 OF 2017

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REASONS FOR VERDICT

1.  The defendant pleads not guilty to one charge of conspiring with Ms Setyowati to contravene a condition of stay imposed on Ms Setyowati by the Director of Immigration, contrary to section 41 of the Immigration Ordinance[1] and sections 159A and 159C of the Crimes Ordinance[2].

Prosecution case

2.  In summary the prosecution case is that Ms Setyowati was permitted to remain in Hong Kong between 12 May 2011 and 12 May 2017 for employment as a domestic helper for the defendant at the defendant’s home, Flat B, 12th floor, Cheong Fat Building, No. 48B Tai Tong Road, Yuen Long, the address specified in the employment contracts (“the contractual address”)[3].

3.  On a day unknown between June and July 2016 in breach of the condition of stay that she work as a domestic helper for the defendant at the contractual address Ms Setyowati moved to live and work at Room D, 11/F, Tower 1, Greenfields, No. 1 Fung Kam Street, Yuen Long (“the Greenfields address”). 

4.  Ms Setyowati was not called as a witness.  The prosecution rely on a written record of interview in which the defendant admitted that he asked Ms Setyowati to work and live at the Greenfields address and that Ms Setyowati did move to work and live at the Greenfields address.      

Defence case

5.  The defence objected to the admissibility of the written record of interview.   On ruling the record of interview admissible in evidence the defence advanced no defence case. 

Conspiracy

6.  Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means with the intention of carrying it out.  The agreement may be proved by direct evidence, or by proving circumstances from which the court may presume it.  Proof of the existence of a conspiracy is generally a matter of inference, deduced from certain criminal acts of the parties accused.

7.  The unlawful act alleged is to contravene the condition of stay imposed by the Director of Immigration that Ms Setyowati was permitted to remain in Hong Kong for employment as a domestic helper for the defendant at the contractual address.

Evidence

8.  The alternate procedure was adopted.  The prosecution called two witnesses on the schedule of prosecution witnesses attached to the prosecution opening: Immigration Assistant So Chun Ming (PW2) who arrested and interviewed the defendant and Immigration Officer Lee Yan Yi (PW3) who witnessed the service of a notice to persons in custody on the defendant and served on the defendant a form asking the defendant if he had any loss or complaint to make during the investigation[4].

9.  The evidence of Senior Immigration Assistant Li Hung (PW8) relating to the movement record of Ms Setyowati was read pursuant to section 65B of the Criminal Procedure Ordinance[5]. All other evidence was admitted pursuant to section 65C of the Criminal Procedure Ordinance[6].

Defence evidence

10.  The defendant elected to remain silent on both the special and general issues.  No witnesses were called on behalf of the defendant. 

11.  Admitted in evidence is that the defendant has one conviction for common assault in 1986 when he was fined $350[7]. The conviction being spent and for an entirely unrelated matter, I direct myself as to good character in accordance with the decision in HKSAR v Tang Siu Man[8].

12.  In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendant has to prove nothing.  I direct myself that I must be sure of the guilt of the defendant before I can convict. 

13.  I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.

14.  I have carefully considered all the evidence and the submissions of Mr Wong and Mr Pang SC. 

Voir dire

15.  Guided by the decision in HKSAR v Okafor[9]as applied in HKSAR v Ip Chun Yin[10] I will first give my reasons for ruling the record of interview voluntary and admissible in evidence. 

16.  The defence objected to the admissibility of the record of interview on the grounds the interview was obtained as a result of inducement and or oppression as particularised in the written grounds of objection submitted by Mr Pang SC[11]. 

Evidence

17.  The prosecution called two witnesses Immigration Assistant So Chun Ming (“IA So”) (PW2) and Immigration Officer Lee Yan Yi (“IO Lee”) (PW3).  The defendant elected not to give evidence or call witnesses.  No adverse inference was drawn against the defendant for remaining silent.  It was for the prosecution to prove beyond reasonable doubt that the interview was given voluntarily. 

18.  IA So testified that on 20 September 2016 he went to Tim Garden situated at the G/F, Hung Fat House, No.89 Kau Yuk Road in Yuen Long where he arrested the defendant at 1638 hours.  Indonesian female Ms Setyowati was also arrested at Tim Garden.

19.  Admitted in evidence is that Ms Setyowati was arrested at 1600 hours[12].  Also admitted is that Ms Setyowati was employed by the defendant as a domestic helper and that it was a condition of stay that Ms Setyowati reside and work at the contractual address[13].

20.  At 1712 hours IA So took the defendant to the offices of the Outside Investigation Section in Kowloon Bay.  In cross-examination IA So agreed that on the way to the offices the minibus taking them stopped at the Greenfields address.  As far as IA So knew the team members who alighted from the minibus went with Ms Setyowati to recover her passport, however, no one was able to enter the premises and the passport was not recovered. 

21.  IA So agreed that on that day no house search was conducted at the Greenfields address or at any other address. 

22.  On arrival at the offices of the Outside Investigation Section IA So arranged for the defendant to sit in an interview room.  The defendant sat by himself for about fifteen minutes.  At 1826 hours IA So served on the defendant a Notice to Persons in Custody (exhibit P5).

23.  IA So read the notice to the defendant.  IA So then asked the defendant to sign only if he understood the notice.  Both the defendant and IA So signed the notice. The defendant also signed to acknowledge receipt of a copy of the notice at 1837 hours.  IO Lee witnessed the defendant being served with a copy of the notice.  IO Lee also signed on the notice as a witness.     

24.  After a copy of the notice was given to the defendant, the defendant said he would like to contact a lawyer.  The defendant was left alone in the interview room and allowed to use his mobile phone.  After about ten minutes the defendant made a gesture through the glass window of the room indicating that he had finished making the call. 

25.  The defendant told IA So that his ex-wife (Madam Chan[14]) could not provide him with the contact details of the lawyer.  IA So therefore gave the defendant a guide to Hong Kong lawyers.  The defendant said he did not need to look at the guide. 

26.  The defendant was then searched and photographed after which he was given a meal. 

27.  Between 2033 and 0145 hours. IA So took a written record of interview (exhibit P6). Apart from the defendant no other person was present in the interview room when IA So conducted the interview. 

28.  The defendant signed after each question was asked to represent that he had read the question.  After the defendant answered the question IA So wrote down the answer.  Once the defendant confirmed the answer was given by him he signed next to the answer. 

29.  At the end of the interview the defendant wrote out the declaration to represent that he had read the interview; that the content was accurate and that he could make any addition, alteration or deletion.  The defendant did not make any amendment or correction.  At 0200 hours the defendant signed to acknowledge receipt of a copy of the interview (exhibit P7).

30.  IA So testified that the record of interview was an accurate record and that in taking the record of interview he did not nor did anybody else use any violence; threaten or induce the defendant. 

31.  At 0230 a.m. IO Lee served on the defendant a form asking the defendant if he had any loss or complaint to make during the investigation (exhibit P8).  After explaining the form to the defendant IO Lee asked the defendant to write down on the form if he had any loss or complaint.  The defendant signed the form indicating he had no damage, loss, discontent or complaint to make.  IO Lee testified that prior to the defendant signing the form he did not use any violence, threaten or induce the defendant[15].

Discussion

32.  I carefully considered all the evidence and the submissions of Mr Wong and Mr Pang SC. 

33.  The issue was one of credibility. 

Unexplained discrepancy

34.  In submitting no case to answer on the admissibility of the record of interview Mr Pang SC submitted that there was a large unexplained discrepancy in the evidence of IA So and IO Lee as to whether the defendant was permitted to call his ex-wife.   

35.  IA So testified that after the defendant said he wanted to contact his lawyer he told IO Lee of this request. IA So then allowed the defendant to use his mobile phone.  In cross-examination IA So said that it was IO Lee who permitted the defendant to call a lawyer. 

36.  In cross-examination IO Lee confirmed that at the time of the taking of the record of interview the defendant’s ex-wife was a suspect and had not been arrested; no house search had been conducted and that a record of interview was also being taken from Ms Setyowati.  IO Lee agreed that he would not allow an arrested person unsupervised contact with a suspect and that he did not give permission for the defendant to have unsupervised contact with his ex-wife.   

37.  Mr Pang SC submitted that the evidence of IA So permitting the defendant unsupervised contact with his ex-wife was diametrically opposite to the evidence of IO Lee, who would not have allowed unsupervised access to a suspect and did not give permission for the defendant to have unsupervised contact with his ex-wife.     

38.  I had no hesitation in rejecting this submission.  In my view there was no discrepancy in the evidence about whether the defendant was permitted to call his ex-wife.  IA So sought permission from IO Lee for the defendant to call a lawyer and not permission to call his ex-wife.  Only after the defendant made the call did he tell IA So that he had called his ex-wife. 

39.  In final submission on the admissibility of the record of interview Mr Pang SC submitted that the discrepancy was not whether the defendant was permitted to call his ex-wife but that IA So allowed the defendant to use his mobile phone unsupervised when there were still suspects who had not been arrested and house searches to be conducted, whereas IO Lee said in these circumstances he would not have allowed such unsupervised contact. 

40.  Mr Pang SC submitted that this unexplained discrepancy cast doubt on the reliability of IA So’s evidence.  I had no hesitation in rejecting this submission.  I accepted the evidence of IA So that IO Lee having granted the defendant permission to call a lawyer he allowed the defendant to use his mobile phone to contact a lawyer. 

41.  Whilst it may have been more prudent for IA So to ascertain who exactly the defendant was going to call and to make the call for him, the fact IA So allowed the defendant unsupervised to use his mobile phone to contact a lawyer did not cause me to doubt his evidence about the taking of the record of interview. 

Breach of the Rules and Directions for questioning suspects and the taking of statements

42.  Direction 1 (d) provides that when a person is being questioned or elects to make statement, a record should be kept of the time or times at which, during the questioning or making of a statement, there were intervals or refreshment was taken. 

43.  In cross-examination IA So said that during the interview the defendant went to the rest room once.  IA So did not record this interval in the record of interview and said that he had recorded this in another form.  In re-examination IA So identified the other form as ID 896[16].  IA So said that he made a contemporaneous record of the time of the visit to the washroom in ID 896.      

44.  Mr Pang SC submitted this was a substantial breach of the Rules and Directions, in particular as one of the grounds of objection was that IA So went in and out of the interview room on numerous occasions[17].

45.  I accepted the evidence of IA So that there was an interval to go to the washroom, the time of which he recorded in ID 896.  Whilst the interval should have been noted in the record of interview I was satisfied that this was not a substantial or significant breach of the Rules and Directions. 

46.  The fact the interval was not recorded in the record of interview but recorded in ID 896 did not cause me to doubt IA So’s evidence about the taking of the record of interview. 

Timing

47.  Mr Pang SC submitted that the timing of the interview cried out for an explanation, for example that the first two pages took only twenty-nine minutes whereas the next five pages took an average of fifty-three minutes per page[18]. 

48.  Relying on the confirmation in cross-examination by both IA So and IO Lee that at the same time the record of interview was being conducted Ms Setyowati was also being interviewed, Mr Pang SC submitted the only inference to draw was that the interview took so long because IA So left the interview room to compare notes with other officers or to take instructions on what would be the appropriate answers to put down.

49.  The defence case as put in cross-examination was that IA So put down answers which were not made by the defendant[19]. In cross-examination IA So disagreed that the record of interview did not accurately record the answers given by the defendant.  Specifically, IA So disagreed that answers 7-12; 14-16; 18; 20-34 and 36-38 were not accurate and not made by the defendant.

50.  The defendant was cautioned for aiding and abetting an Indonesian female to breach her condition of stay by working at G/F, Hung Fat House, 89 Kau Yuk Road, Yuen Long (Tim Garden[20]); for working at the Greenfields address and for making false statements that Ms Setyowati would work and reside at the contractual address. 

51.  The written record in my view shows that the defendant was allowed to answer in the way he wanted, for example, the defendant, inter alia, said he was the boss of Tim Garden and that his domestic helper was there on the day of arrest because he had asked her to collect something and that previously he had asked his domestic helper to go to Tim Garden to get money for buying food or take some meat and vegetables home for cooking[21]. These answers were clear denials of the allegation he aided and abetted his domestic helper to work at Tim Garden. 

52.  Further, when the defendant was shown a photograph of his domestic helper apparently in working clothes at Tim Garden the defendant said he did not know why she was in such an outfit[22]. This answer again was a denial of the allegation he aided and abetted his domestic helper to work at Tim Garden. 

53.  I had no hesitation in rejecting the allegation that IA So put down answers not made by the defendant.

54.  I carefully looked at the record of interview and the time taken for each part of the interview.  The fact that the question and answer section from QA7 to QA38 took four hours and twenty-five minutes did not cause me to doubt IA So’s evidence about the taking of the record of interview.  In addition, the defendant wrote out the declaration at the end of the interview confirming the accuracy of the questions and answers. 

Corrections

55.  In cross examination IA So was asked about the correction of the last character of the Greenfields address.  The correction appears in seven places: the preamble; answers 20 and 22 and questions 33, 34, 36 and 37. 

56.  IA So said that it was the defendant who spotted the mistake when he was reading through the statement at the end of the interview.  IA So then checked the whole document and made the corrections. 

57.  The defendant read the statement between 0135 and 0138 hours after which he said he had no corrections, alterations or additions to make.  At 0140 hours the defendant wrote out the declarations.  The interview was concluded at 0145 hours. 

58.  Mr Pang SC submitted the evidence that the defendant spotted the mistake when reading the interview was incredible.  Mr Pang SC submitted that if the defendant was the one who spotted the error it was inherently improbable that he did not spot this earlier when he read the preamble or when signing to confirm each question was asked and each answer was given by him[23]. 

59.  Mr Pang SC further submitted that not only was the evidence inconsistent with the defendant declaring he had no corrections to make, but more importantly the evidence that the reading of the record of interview by the defendant and the making of all the corrections took only three minutes, was evidence Mr Pang SC submitted that did not accord with any reality.

60.  I had no hesitation in rejecting this submission.  The correction of the last character of the Greenfields address did not in any way affect the substance of what the defendant told IA So.  The correction of the last character of the Greenfields address did not cause me to doubt the evidence of IA So.  Nor did the fact that the defendant declared that he had no corrections to make cause me to doubt the evidence of IA So. 

61.  Having carefully considered all the evidence I was satisfied so I was sure that IA So and IO Lee were witnesses of truth who gave credible and reliable evidence.  I accepted the evidence of IA So and IO Lee. 

62.  I was satisfied so I was sure the defendant was not induced or subject to oppression. I was satisfied beyond reasonable doubt that the record of interview was given by the defendant voluntarily. 

63.  In reaching my findings I carefully considered the submissions of Mr Pang SC.  Nothing said by Mr Pang SC caused me to doubt that the written record of interview was given voluntarily. 

64.  I ruled the Notice to Persons in Custody (exhibit P5); the record of interview (exhibit P6) and the acknowledgement (exhibit P7) admissible in evidence. 

Discretion

65.  The defendant was made aware of his rights having been served with a Notice to Persons in Custody and cautioned at the beginning of the interview.  Applying the principles established in HKSAR v Lam Tat Ming, I found no grounds to exercise my discretion to exclude from evidence the written record of interview on the grounds of unfairness[24].

66.  I also noted that after the interview was completed the defendant signed to say he did not have any damage, loss, discontent or complaint while under the enquiry of the Immigration Department (exhibit P8).

General issue

Evidence

67.  Apart from the oral evidence of IA So and IO Lee given on the voir dire, no other witnesses were called by the prosecution.  The evidence of Senior Immigration Assistant Li Hung (PW8), detailing the movement records of Ms Setyowati between 1 July 2008 and 24 January 2017, was read pursuant to section 65B of the Criminal Procedure Ordinance[25].

68.  The defendant elected not to give evidence or call any witnesses.  No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  This does not establish his guilt.  On the other hand this means there is no evidence from the defence to undermine, contradict or explain the evidence led by the prosecution. 

Prosecution evidence

69.  Regulation 2 (4) of the Immigration Regulations[26] provides that where a person is given permission to land in Hong Kong for employment that person is subject to the condition of stay that he shall only take such employment as may be approved by the Director.

70.  Admitted in evidence is that Ms Setoywati was employed by the defendant as a foreign domestic helper pursuant to employment contracts no. H296055 dated 28 March 2011 (exhibit P1); J481610 dated 1 April 2013 (exhibit P2); and J521592 dated 9 March 2015 (exhibit P3)[27].

71.  Clause 3 of the employment contracts provide that the helper shall work and reside in the employer’s residence (the contractual address).  Also admitted is that it was a condition of stay that Ms Setyowati reside and work at the contractual address[28].

72.  The movement records of Ms Setyowati show, inter alia, that Ms Setyowati first came to Hong Kong on 14 November 2008; Ms Setyowati’s permission to stay in Hong Kong was extended on 29 April 2011; 23 April 2013 and 27 April 2015 which was after the signing of the three employment contracts on 28 March 2011; 1 April 2013 and 9 March 2015; and that Ms Setyowati was in Hong Kong in June and July 2016, the dates particularised in the charge [29].

73.  In the written record of interview the defendant admitted, inter alia, that Ms Setyowati previously resided in the contractual address; in June or July 2016 he asked Ms Setyowati to move to the Greenfields address to do domestic chores and look after his two children; Ms Setyowati moved to the Greenfields address where she worked and resided; and that he did not make a declaration notifying the Immigration Department that Ms Setyowati would work and reside in the Greenfields address[30].

Discussion

74.  I have carefully considered all the evidence.   

75.  In final submission Mr Pang SC adopted the submissions made during the voir dire and reminded the court that they must be satisfied as to the truth of what is written in the record of interview.   

76.  I accept the prosecution evidence.  I am satisfied so I am sure that full weight is to be attached to the admissions in the written record of interview that in June or July 2016 the defendant asked Ms Setyowati to move to the Greenfields address to do domestic chores and look after his two children and that Ms Setyowati did move to the Greenfields address where she worked and resided.

77.  Clause 15 (b) of the employment contracts provides that the prior consent of the Commissioner for Labour is not required to vary the employer’s residential address (the contractual address) where notification in writing has been given to the Director of Immigration.

78.  I am satisfied so I am sure that full weight is to be attached to the admission in the written record of interview that the defendant did not notify the Immigration Department of this change.

79.  I am satisfied so I am sure the only inference to draw is that the defendant and Ms Setyowati agreed to breach the condition of stay that she work as a domestic helper for the defendant at the contractual address and carried out that agreement by moving to the Greenfields address where she worked and resided.   

80.  In reaching my verdict I have carefully considered everything said on behalf of the defendant by Mr Pang SC.  Nothing said by Mr Pang SC causes me to doubt the findings I have made.

81.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  The defendant is convicted as charged.