HKSAR v. LAW KIT CHING

HCMA313/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.313 OF 2003

(ON APPEAL FROM KCCC 2554 OF 2003)

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

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

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

J U D G M E N T

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

1. This is an appeal against conviction only.

2. The appellant was convicted of an offence of aiding and abetting the making of a false representation to an immigration officer contrary to section 89 of the Criminal Procedure Ordinance, Cap.221 and section 42(1)(a) of the Immigration Ordinance, Cap.115.

3. The facts of the case as found by the magistrate were that the appellant, who operated a domestic helper employment agency, had assisted a Sri Lanka domestic helper, Miss Fernando ("Fernando") to falsely represent to an Immigration Officer that her employment by a Madam Wong Oi Lin ("PW2") had after its commencement on 19 August 2000 continued for two years and ceased only on 19 August 2002. The appellant had assisted Fernando find employment with PW2. The appellant had been told by PW1, the sister of PW2, that PW2 was looking for a domestic helper and PW1 knew that the appellant operated a foreign domestic helper employment agency.

4. Fernando had arrived in Hong Kong on 19 August 2000 and had been permitted to remain in Hong Kong until 19 August 2002 on the basis of her employment contract with PW2 or, should that employment have been prematurely terminated, until two weeks after that termination of employment.

5. The Immigration Department heard no more about Fernando's employment until about 1 August 2002 when she provided the Department with various documents supporting her application for the approval by the Department of her changing her employer from PW2 to the appellant. One of those documents was a letter (Exhibit P7) in English purportedly signed by PW2 confirming that Fernando's employment would cease on 18 August 2002.

6. Subsequently on 26 August 2002, Fernando provided another letter (Exhibit P11) to the Department signed by the appellant to the effect that the appellant had changed her mind about employing Fernando. The Department then permitted Fernando to remain in Hong Kong with a visitor's status. Then on 9 October 2002, Fernando submitted a further application to the Department for permission to work as a domestic helper for the appellant's sister. She supported that application with a number of documents including another letter (Exhibit P14) purporting to be from PW2 and confirming Fernando had in fact been employed by PW2 between 19 August 2000 and 19 August 2002 in accordance with Fernando's original contract.

7. In other words, Fernando had continuously up to and including 9 October 2002, the charged date, represented to the Department that she had, continuously between 19 August 2000 and 19 August 2002, been employed by PW2. According to the information supplied by Fernando to the Department, she then was to be employed by the appellant but upon the appellant changing her mind about that was subsequently to be employed by the appellant's sister.

8. So far as all this is concerned, the magistrate found that Fernando had in fact stayed in employment with PW2 only for a matter of two months up until October 2000 when her employment with PW2 had ceased and she had been taken away from PW2's premises by the appellant after the appellant had been told that PW2 had decided to terminate Fernando's employment.

9. The appellant had written Exhibit P14. That was common ground. The magistrate found that at the time she wrote it she knew it was false and that Fernando would submit it to the Immigration Department.

10. The first ground of appeal which is advanced on behalf of the appellant is quite straightforward. The appellant says that the magistrate's finding of fact that the appellant knew that the contents of Exhibit P14 were false was unsupported by the evidence. With respect to Mr Kwong's arguments on behalf of the appellant, the evidence pointing to the appellant's knowledge that the contents of Exhibit P14 were false so far as they represented that Fernando was continuously employed by the PW2 up until 19 August 2002 was overwhelming, once the magistrate had accepted the evidence of PW2 and to a lesser extent that of PW1.

11. That is because their evidence established that the appellant had been informed that Fernando could no longer be employed by PW2 in October 2000 after only some two months of her contract of employment had been performed, and that the appellant had herself collected Fernando from PW2's premises and taken her away. Fernando did not return or live with or work for PW2 again. Further, the magistrate accepted PW2's evidence that subsequently, some two years later in about October 2002, the appellant had telephoned PW2 and told her that if the Immigration Department were to contact her she should tell them that Fernando's contract had ended in August 2002 rather than in October 2000.

12. Finally, the magistrate accepted from PW2 that she had no knowledge of either Exhibit P7 or Exhibit P14 and that the signatures on those documents which purported to be hers were not hers.

13. The evidence of PW2's sister, i.e. PW1, was also accepted by the magistrate to the effect that she had noticed Fernando working in PW2's flat only for a month or so on her frequent visits there in late 2000 and that she, PW1, had subsequently informed the appellant that PW2 could no longer afford to employ Fernando and the appellant had said she would deal with the termination procedures. Subsequently on her visits to her sister's flat, she did not see Fernando there.

14. In short, once the magistrate had accepted the evidence of PW1 and PW2 in this regard, the conclusion was inevitable that the appellant was aware Fernando had left the employ of PW2 in about October 2000. That being so the conclusion necessarily followed that when she, the appellant, wrote out the contents of Exhibit P14, as she agreed in her evidence she had, she must have known that those contents were false.

15. The magistrate's acceptance of PW1's and PW2's evidence in this regard was perfectly proper. He gave concise and sensible reasons for regarding them as witnesses of truth. There is nothing in this first complaint of the appellant.

16. The second ground of appeal argued on behalf of the appellant by Mr Kwong is that even if the appellant did know that the contents of Exhibit P14 were false, the prosecution evidence left open the possibility that the appellant drafted the letter Exhibit P14 on behalf of PW2, so that PW2 could sign it if she wished. That would mean, says Mr Kwong, that the appellant intended to aid and abet PW2 in the offence, rather than Fernando.

17. Mr Kwong as I understand his argument is not asserting that the magistrate was wrong to accept PW2 as a witness of truth, but says that even on the evidence accepted by the magistrate there is a possibility that, even if the appellant knew Exhibit P14 contained false information concerning PW2's employment of Fernando, the appellant intended to aid and abet PW2 in presenting false information to the Immigration Department and not Fernando.

18. With respect to Mr Kwong that argument, without any moral credit to the appellant as it is, is also without any legal basis. Even if the appellant gave the letter to Fernando and, contrary to the thrust of the magistrate's findings, did so to enable PW2 to sign it, that by no means alters the appellant's intent in the long run that the false letter be used by Fernando to misrepresent her status to the Immigration Department. The addition of an extra link in the chain does not prevent the appellant still knowingly aiding and abetting Fernando in this regard. But in any event, the appellant's argument so far as this is concerned completely ignores the evidence of PW2 in the case which was accepted by the magistrate.

19. PW2 said she had no knowledge of Exhibit P14, that she had no dealings with or concerning Fernando once Fernando had left her premises in October 2000 other than that the appellant rang her in October 2002 and asked her to tell the Immigration Department, that Fernando had left her employ on 19 August 2002.

20. To suggest the evidence, as accepted by the magistrate, left open the possibility that PW2 may have been the instigator of these offences is wholly unrealistic and contrary to the magistrate's Findings of Fact. Those Findings of Fact leave no room for Mr Kwong's argument that the appellant may have been aiding and abetting PW2 in assisting Fernando to deceive the Immigration Department. There is no merit in this complaint of the appellant.

21. Mr Kwong finally argues that the magistrate failed to consider that as the letter, Exhibit P14, written by the appellant and given to Fernando was in Chinese, and that as there was no proof that Fernando read characters, the contrary being the common sense reality, then Fernando could not have been aware of its contents. That being so says Mr Kwong how could it be said the appellant was aiding and abetting Fernando by providing her with the letter if Fernando did not know what its contents were.

22. The answer I must say is fairly obvious. Fernando may not have known precisely what the letter Exhibit P14 said, but that is irrelevant. The prosecution had to prove that Fernando intended to make a false representation to the Immigration Department Officer who dealt with the case to the effect that she had been in continuous employment with PW2 between 19 August 2000 and 19 August 2002 when in fact she had not.

23. There was ample proof of this. The evidence of PW1 and PW2 having been accepted by the magistrate, Fernando must have known she had not been employed by PW2 since October 2000. By the documents she presented to the Immigration Department on both 1 August 2002 (for the purpose of seeking a change of employer from PW2 to the appellant) and on 9 October 2002 (for the purpose of seeking to work for the appellant's sister) Fernando must have known from at least Exhibit P7, a letter written in English and purporting to be from PW2 confirming Fernando's continuing employment with PW2 up to 18 August 2002 that the information to be provided to the Immigration Department was false. That must have been confirmed in Fernando's mind by the further documents she provided to the Immigration Department on 9 October 2002 which, except for Exhibit P14, were in English and which in Exhibit P15 and Exhibit P16 contained specific assertions by Fernando that her contract with PW2 had terminated on 19 August 2002. Those misrepresentations by Fernando were quite explicit and written apparently by Fernando herself.

24. Fernando must have been aware at the very least that the additional letter, Exhibit P14, although in characters and even if unreadable by her, was provided to her to facilitate the misrepresentation she was to make to the Immigration Department.

25. Accordingly in my view there was ample proof that Fernando set out to and did commit the offence of making a false representation to the Immigration Department.

26. As the magistrate said in his thorough Statement of Findings :

" I am satisfied, therefore, that the representation made by Fernando to an immigration officer on or about 1 August 2002 and the representation made by her on or about 9 October 2002 were false and that Fernando knew that they were false. She had not worked for PW2 as a domestic helper since October 2000."

27. And following on from that was the inevitable conclusion by the magistrate :

" I am also satisfied, on the evidence, that the defendant was fully aware of the situation of Fernando's employment status with respect to PW2. It was the defendant who took Fernando away from PW2's home, having been told that PW2 had decided to terminate her employment. She knew that the employment had been terminated as far back as October 2000.

I am satisfied that the defendant further knew that the representations made to immigration officers by Fernando that her employment with PW2 would and did terminate in August 2002 were false."

28. There is nothing in this final complaint of the appellant and her appeal against conviction is dismissed.