HKSAR v. LEE SIU MING, SANDY

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Criminal Appeal
1996 No.493

--------------------

----------------------

J U D G M E N T

----------------------

Power, V.P. (giving the judgment of the Court)

Decision on motion to adduce further evidence

1. Ground 4 of the Grounds of Appeal contends that the interpretation at trial contains irregularities and inaccuracies so grave as to make the conviction unsafe. This ground depends upon the affidavit of a Madam Marcela Chiu, which the applicant seeks, pursuant to s.83V of the Criminal Procedure Ordinance, to place before this court for use in the appeal hearing. Mr. Kynoch was, de bene esse, invited to refer to the most serious of these irregularities and inaccuracies when arguing his application to adduce further evidence. He argues that they clearly indicate that the trial was unfair and that the conviction must be regarded as being unsafe. We have given full consideration to the arguments advanced by Mr. Kynoch. There were, we say immediately, clearly irregularities in the behaviour of the interpreter, and we make it plain that we in no way countenance them, but we do not consider that, when these are placed in the context of the evidence in the trial as a whole, they would, either standing alone or taken together, be sufficient to make the conviction in any way either unsafe or unsatisfactory and the application to adduce further evidence is therefore refused.

Decision on Application to Appeal against Conviction

2. The applicant faced six charges of aiding and abetting the making of a false representation to an immigration officer. She was convicted after trial before Judge Davies and sentenced to imprisonment for two years on each charge and the sentences were ordered to be served concurrently. She now seeks leave to appeal against the conviction and also to appeal against sentence out of time.

3. Four Filipina domestic workers were involved. They each gave evidence under immunity stating that the applicant had, in each case for varying amounts of money, prepared false documents for them to present to the Immigration Department to use when applying for visas or visa extensions between April 1994 and May 1995.

4. The applicant gave evidence denying that she had ever dealt with any of the Filipinas and suggesting that they must have dealt with her partner Emelita Libut. The prosecution in rebuttal produced evidence that the only Emelita Libut who had visited Hong Kong around the relevant time had left on 7th January 1994.

5. It was the defence case, and I take this from the reasons for the judge, that the four Filipinas

"had conspired to protect a fellow countrywoman by identifying this Chinese defendant as the person responsible. (Defence counsel) highlighted certain parts of their evidence which he said would indicate this and could not be merely coincidental. He referred particularly in this context to the four witnesses being found in the same flat in Cross Street, Wan Chai; all being Ilocano speakers; all having gone to the same agency, albeit at different times, as a result of being handed the defendant's business card by someone unknown in Central; but yet, each claiming that she had been unaware that the others had been engaged in the same pursuit."

The judge went on to say:

"I have concluded that while each of them was defensive and less than frank in their answers concerning details of their part-time employments under the bogus contracts and as to how each had supported herself following release after arrest, they have nevertheless given truthful answers in relation to the person who supplied them with the bogus contracts and supporting documents, a person whom they had each seen and spoken to on a number of occasions. I am satisfied that each went to the premises. I noted particularly that an almost complete set of bogus documents relating to Candelario were found in the defendant's new premises when it was visited by the immigration officers, on which there were details of her payments into the defendant's bank account. Also, that Tingco gave a reasonable description of the premises she had visited, Ditchillas gave a reasonably accurate description of the defendant in her statement to the immigration officers.

In the witness box the demeanour and body language of these witnesses were very obviously reflective of their defensive attitude when being questioned about their part-time working activities. However, when the questioning turned to their meetings with the defendant at the agency and to the supply of false documents, each became markedly positive in attitude, demeanour and body language, with strong eye contact with the defendant. All reflective, in my view, of a firm recognition of the defendant rather than of a concocted identification. In this regard, I found the evidence of each defendant convincing. I do acknowledge that it has been said that demeanour and body language can rarely assist in the assessment of credibility. If this is so, then I feel that this is one such rare case. If such things cannot play a part then there does seem little point in my having had the opportunity of seeing and hearing the defendant and the witnesses give evidence."

6. The judge said finally:

"Having considered all the evidence in this case and the submissions of counsel, I find the defendant to have been correctly identified in each instance as the person who was responsible for the arranging and supplying of bogus contracts and supporting documents in order that those documents could be furnished to immigration officers in support of application for visa extensions. I find her guilty of each offence as charged."

7. The ground argued today by Mr. Kynoch was that the judge erred in allowing each of the Filipina witnesses to make a dock identification. Each, as the judge noted, had seen the applicant on a number of occasions. These identifications were made without objection by the defence. This refraining from objection was clearly deliberate. It was never part of the defence that there had been a mistaken identification. It was the defence that the Filipinas were telling deliberate calculated lies when they said the applicant was involved. Indeed, as the trial developed, it became clear that the allegation was not only that each was lying but also that they had conspired together both to mislead the immigration authorities in order to obtain visas or extensions and to put the blame on the applicant in order to protect a fellow Filipina.

8. It is important to set out how this defence as it unfolded in cross-examination.

9. The first of the four Filipinas was a Maria Candelario who gave evidence as PW2. It was put to her:

"You found a Filipina who told you that they could arrange a sponsor for you so that you could continue doing part-time work.

A. I disagree.

Q. And I put it to you that when you paid money into the bank account of Sandy Lee, that it was that Filipina who gave you the bank account number and told you to pay the money in, because she owed money to Sandy Lee.

A. Sandy Lee gave me the bank account number and the name."

The cross-examiner went on:

"Q. And I put it to you that you have been giving evidence blaming Sandy Lee in all of these matters, firstly, to protect the Filipina who actually helped you and, secondly, because you felt that by giving evidence in this way, you could avoid being prosecuted and being deported.

A. I'm not protecting any Filipina. It was Sandy Lee who helped me."

10. There was nowhere in the cross-examination any suggestion of mistaken identity. It was squarely put that the witness was deliberately lying to protect a fellow Filipina.

11. The second of the four ladies to give evidence was Gloria Celestino. She gave evidence as PW4. It was put to her that she had dealt with Emelita Libut at the employment agency as follows:

"Q. Well, I put it to you that you did know her and that she's the one who made the arrangements for you.

A. No way. It's only Sandy. I got everything from Sandy."

The following exchange then occurred:

"Q. When you were taken back to the Immigration Department, were the four of you kept together for a while before you were interviewed?

A. What do you mean - what do you mean by 'together'?

Court: Well, were you placed in a room together?

A. No. One by one.

Q. Did you agree with the other three that you'd all tell a story to the Immigration Department about the Sanbarry Employment Centre and Sandy Lee?"

The court intervened there and suggested that the question be reframed and it was, in the following way:

"Q. Well, did you discuss with the others to tell the story - tell a similar story to the Immigration Department?

A. No."

12. Shortly thereafter, the following exchange occurred:

"Q. Well, I put it to you that the money that you paid through the bank was paid into that account as a result of something you were told by a Filipina, not by Sandy Lee.

A. I disagree. Sandy personally gave me the account.

Q. I put it to you, the only way that you are able to identify Sandy Lee is because when you were interviewed by the Immigration Department, you were shown a picture of her.

A. I disagree. I personally talk to her every time I go to her agency."

13. Here the defence was suggesting a concoction by the four girls to implicate the applicant. There was never any suggestion of mistaken identification.

In the cross-examination of the next witness, Honorata Tingco (PW5), the allegation of conspiracy to mislead immigration officers was put, rather than suggested, in explicit terms:

"Q. Yes, Miss Tingco, I put it to you that you in fact knew these girls (Cordelerio and Celestino), those other two girls beforehand and had discussed these matters with them.

A. I disagree. We never discuss.

Q. I put it to you that either you got all of the information that you needed to put in to supply with your application for extension of stay yourself, this is without going to an agency. Or that you arranged it with other Filipinas that you met at the agency in Tsuen Wan.

A. The first part, I disagree. Sandy gave me all the documents. Second part, I disagree. Sandy handed me the documents."

14. Again, in her case there was never any suggestion made that there was any mistaken identification.

15. The final of the four Filipinas was Enlinda Ditchillas. She gave evidence as PW6 and a deliberate concoction by all four Filipinas was again pursued during cross-examination. Indeed, it was, if anything, suggested in a firmer way:

"Q. Isn't it the case that you and all the three other Ilocano speaking girls who were arrested with you, had arranged together to get yourselves false contracts and entry documents?

A. I disagree.

Q. Isn't it the case that you all agreed between you to have similar stories to give to the Immigration Department?

A. I disagree.

Q. Isn't it the case that the Sanbarry Employment Centre was chosen because there was a Filipina who worked out of that location who helped to arrange sponsor contracts?

A. I disagree.

Q. And her name is Emelita Libut.

A. I disagree."

16. The defence, as can be seen from the foregoing, was an unalloyed attack upon the credit of the four Filipinas. It was alleged that they were deliberately concocting evidence to implicate the applicant and to protect a fellow Filipina. No objection was taken to the dock identification because it was the defence that the identification was patently false and was part of a conspiracy to give false evidence. There is, we are satisfied, no merit in the suggestion that the trial was unfair and the conviction unsafe and unsatisfactory because dock identifications were allowed. The defence deliberately never made identification an issue. This ground must, therefore, fail. The application is dismissed.

Decision as to Sentence

17. The sentences imposed upon this applicant are not criticised but the court is asked to vary them because of the time that has elapsed since conviction, during much of which the applicant has been on bail. She was convicted in August 1996 and had already served ten months' imprisonment when she was given bail in June 1997. If she receives the usual remission for good conduct, she will have only six months to serve. It has taken more than a year for the matter to reach this court.

18. It is submitted by Mr. Kynoch that the delay has been no fault of hers. The decision to appeal was, of course, hers but we are satisfied that the merits of this matter are not encompassed by that observation. We must look to see why she instituted the appeal, whether or not it was to any extent justified and whether the delay was inordinate and beyond her control.

19. Her principal ground of appeal was that the interpretation at the trial was both irregular and inaccurate. We are satisfied that there clearly were irregularities but not such as to make the conviction unsafe. To explore those irregularities took a very long time. It was no fault of hers. Tapes had to be obtained and examined and affidavits made. Further there was substantial delay because the interpreter asked to comment had gone to Canada. This case does have exceptional circumstances and we are satisfied that we properly can, as an exceptional exercise of mercy, follow the course that was adopted in Daya Kalia (1974) 60 Cr.App.R. 200, and order that the application be allowed, its hearing be treated as the hearing of the appeal and the sentences be varied so as to allow for the immediate release of the applicant.