R. v. LAM YUEN YU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1317 of 1996

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J U D G M E N T

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1. The appellant was convicted on her own plea on 15th October 1996 of two charges of aiding and abetting, counseling or procuring the making of a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance.

2. The facts were that on 5th September 1996, Immigration Officers conducted a raid at a cleaning company in Kwun Tong and found a Thai female working in that establishment. Enquiries reveal that she had never worked for her contractual employer who was the appellant in this matter.

3. The appellant admitted and pleaded guilty on the basis that she was only the nominal employer of the Thai woman and that she had been requested to do so by the 2nd defendant in that case.

4. In March 1994, the 2nd accused in the trial requests the appellant to employ a domestic helper for him as he had already employed a domestic helper. He prepared all the supporting documents which were then signed by the appellant. The appellant gave copies of her identity card, proof of income and blank pages with her signature to the 2nd accused in that trial for the employment application and subsequent extension of the Thai's right to live and work in Hong Kong. She was aware that the documents would be submitted to the Immigration Department for the employment application of the Thai woman and that the Thai woman would not work for her as a domestic helper.

5. Mr Mumford argues before me, and there is some evidence to that effect in the brief facts of the case, that the appellant believed that the Thai woman was the girlfriend of the 2nd accused in the trial below. After the woman finished her contract in Hong Kong, she was further given a contract on the basis that she also again was working for the appellant. The new contract was signed by the appellant who acted again as the nominal employer. The appellant knew that that contract would be submitted to the Immigration Department for the extension of stay and that the Thai female would not work for her.

6. I accept, on Mr Mumford's argument, and upon the transcript and papers before me that the appellant was unaware that the Thai female was working in a cleaning company in Kwun Tong. I accept that there is substantial reason to believe that she was of the view that the Thai woman was the girlfriend of 2nd accused. I accept that she received no benefit of whatsoever kind, either financially or otherwise in respect of her actions and that they were done on a purely gratuitous basis. I accept that she is a woman of 33 years of age, that she has good and substantial employment in Hong Kong and has a clear record. As I have said before, she entered a plea of guilty to this matter.

7. I am referred by Miss Wan R. v. Wong Ho Kay Crim. App. No.232 of 1995 where Mortimer JA said:

"The offences strike at the root of the local system whereby domestic helpers are allowed into the Territory provided they have valid and approved contracts."

He was of course talking about circumstances where false representations were made to an Immigration Officer in respect of domestic servant employment contracts in Hong Kong. I accept the words of Mortimer JA. and find that an appropriate sentence in cases of this nature is a custodial sentence.

8. I have considered all the circumstances of this matter including the fact that the Thai female was sentenced to two weeks' imprisonment in respect of each offence of making a false representation to the Immigration Authority, the sentences to run consecutively, albeit that she received the benefit of staying in Hong Kong and what other benefits flowing from that and that 2nd accused in the trial below was sentenced to one month's imprisonment which in totality is the same sentence as received by the appellant. I can find no criticism of the level of sentence imposed by the learned magistrate and find that in respect of the appellant before me one month's imprisonment was entirely appropriate.

9. What I must go on to consider is whether or not the sentence ought to be suspended. I have place before me by Mr Mumford a medical report indicating that a cervical examination of the appellant indicates some abnormality of tissue samples which may, if taken at its highest, mean that a reasonably severe form of cancer exists in the appellant. She has to have further tests before this can be ascertained. I take into account that illness in an appellant is not generally a matter to be taken into consideration but to be a matter for Executive clemency. I am however, prepared to take it into account in respect of the overall circumstances of the appellant.

10. In this case, given the sentences passed on the others involved in this matter, given the background and clear record of the appellant and given that in all the circumstances the likelihood of her again committing an offence of this nature where she receives no benefit, as a favour for another is at the very lowest levels. I am prepared to suspend the sentence passed upon the appellant. The appeal against sentence is allowed to the extent that the sentence of one month's imprisonment is suspended for a period of two years.