HKSAR v. HERRERA HOMER LEONARDO

HCMA 355/2019

[2020] HKCFI 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 355 OF 2019

(ON APPEAL FROM SHATIN MAGISTRACY

CASE NO STCC 2624 OF 2019)

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J U D G M E N T

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1.  The appellant was convicted on his own plea before a magistrate of “Conspiracy to defraud” and was sentenced to a term of 8 months’ imprisonment to be served consecutively to a term of 9 months’ imprisonment he was then serving (STCC 116/2019).

2.  The particulars of offence are that the appellant between an unknown day in May 2017 and 19 October 2017, both dates inclusive, in Hong Kong, conspired with Imperial Lalaine Rivera to defraud the Director of Immigration of Government of the Hong Kong Special Administrative Region (“the Director”) and his officers, by Imperial Lalaine Rivera and Chan Yu Kui entering into a domestic helper contract and by dishonestly and falsely representing to the Director and his officers that Imperial Lalaine Rivera’s entries to and the remaining of Imperial Lalaine Rivera in Hong Kong were for the purpose of working as a domestic helper of Chan Yu Kui, and thereby to induce the said Director and his officers to act contrary to their public duty, namely to grant Imperial Lalaine Rivera permission to enter and remain in Hong Kong under circumstances which they would not otherwise have granted.

3.  The appellant appealed against sentence.

4.  In the magistracy, the appellant was represented by duty lawyer.  Here, he appeared in person.

Grounds of appeal

5.  In a form attached to his Form 102 which merely adopted the pro‑forma ground that his sentence was too severe, the appellant described what he went through: that he was first sentenced in a different case (STCC 116/[2019]) on [10 June 2019] for the offence of conspiracy to defraud to 9 months in prison; then on 27 June 2019, he was charged with the same offence (this case) to which he immediately pleaded guilty but he was sentenced to 8 months’ imprisonment consecutively.  The appellant complained that he was treated too harshly and he is merely asking for concurrent sentences.  The appellant reasoned that he is not a local person and so he wants to go back to the Philippines.

Summary of the facts admitted

6.  The facts admitted by the appellant were summarized in the Reasons for Sentence as follows:

“Facts

2. Ms. L.R. Imperial, a [Filipino] resident, came to Hong Kong in 2013 as a domestic helper. On 1 June 2017, she applied [] for extension of stay as a foreign domestic helper for one CHAN Yu Kui under an employment contract No. L809087 (‘the new contract’). Her application was approved and she was permitted to stay until the completion of the contract on 20th June 2018 or within 2 weeks upon its earlier termination, whichever is earlier.

3. After investigation by the authorities it was revealed that upon the termination of her earlier employment contract, Ms. Imperial could not find a new Hong Kong employer.  It was through the defendant that she signed the new contract knowing that it was bogus and she did not have to comply with the terms stipulated in the same.  She had to pay HK$20,000 for this arrangement.  The sole purpose was to defraud the Hong Kong Immigration Department so that she could continue to stay in Hong Kong.”

Magistrate’s reasons for sentence

7.  The magistrate’s reasons for sentencing the appellant are recorded in the Reasons for Sentence as follows:

“Discussions

4. There is no clear sentencing guideline for conspiracy. The substance of conspiracy is the agreement to commit an offence. The culpability of a conspiracy conviction is therefore dependent on the offence, which in the present case is to defraud the Immigration Department. Its effect was to defeat the legislative controls over the import of foreign workers in Hong Kong.

5. From the facts admitted the defendant had been instrumental to the offence. I note that the conspiracy in effect enabled Ms. Imperial to c[o]me to Hong Kong by using a fake contract and falsely representing to the Immigration Officer that she came to work as a domestic helper under the terms of same.

6. Of this kind of offences, the learned Deputy High Court Judge To had distilled the following guideline after referring to the line of authorities:

“The tariff of 15 months’ imprisonment is appropriate for an offender who possessed or used a forged travel document as the offence involves and international dimension and concerns comity of nations or for an offender whose entry into Hong Kong would adversely affect our local employment market and social conditions.  The offence for making a false representation in that connection should be treated similarly.”

(see para 18 of the Judgment of HKSAR and BODOMO, MARISSA FLORES, Magistracy Appeal No. 343 of 2005, dated 13th May 2005)

7. I would therefore adopt 12 months’ imprisonment as a starting point, reduced to 8 to take into account of his guilty plea.

Other considerations

8. The defendant is a 35 years old Filipino. On 10 June 2019 he was convicted after trial of an offence of conspiracy. Except for the identity of the conspirator and the dates of the offence (i.e. on a date unknown in August and 10 June 2017). The facts were almost identical to those before me. He was sentenced to 9 months’ imprisonment and was due to be released on 25 November 2019.

9. As he is convicted on 27 June 2017, technically the defendant had a clear record at the time of the present offence was committed : i.e. between May and 19 October 2017. However, that both offences took place in the same year and both involved the breach of legislative control over the import of foreign domestic helpers is a factor I ought to take into consideration in delivering the final sentence order.

10. I also learned of the defendant’s background from the submission of his lawyer. The defendant’s father is a Hong Kong resident whose health had been adversely affected by the earlier conviction. I did not consider any of these constitute valid mitigating factors.

11. Counsel for the defence agreed that this is a serious offence but tried to persuade me to order part of the sentence to run concurrent to the existing one. Taking into consideration of the gravity of the offence, the fact that I have already adopted a rather generous starting point and that the present offence is distinct from the one for which he is serving a term of imprisonment, I do not consider it appropriate to make further reduction by ordering part of the sentence order to run concurrent.

12.  For the reasons stated above, I ordered that the 8 months’ imprisonment to run consecutive to the existing order.”

Summary of the appellant’s submissions

8.  From the two sets of written submissions (one dated 23 October 2019 and the other undated but handed up on the day of hearing), the appellant’s submissions may be summarized into 6 main points:

(a)     The Immigration Department ie the law enforcement agency in the two cases either mistakenly or intentionally delayed bringing the present case (the second case) to court resulting in the failure to have both cases placed before the same magistrate;

(b)     The magistrate in the present case failed to award any discount on sentence due to the delay;

(c)     The magistrate here misapplied the case of HKSAR v Bodomo Marissa Flores [2005] 4 HKLRD 285 when he adopted the starting point of 12 months’ imprisonment when the correct starting point according to Bodomo should be 6 months;

(d)     The case of Attorney General v Ching Wai Fan Carina [1995] 2 HKC 217 relied on by the respondent should be distinguished by the fact that in the appellant’s case no forged documents nor co‑conspirator was/were presented in court; and that the appellant only benefitted a small amount in the thousands and without proof; that he only faced two charges (together with the other case STCC 116/2019);

(e)     The magistrate failed or failed appropriately to apply the totality principle; and

(f)     The magistrate erred in principle by regarding as significant the breach of legislative control over the import of foreign domestic helpers.

Summary of the respondent’s submissions

9.  The respondent relied on a set of written submissions supplemented by oral submissions made in court.  They can be summarized as follows.

10.  Regarding points (a) and (b) of the appellant’s submissions, the respondent handed up a “Chronology of Events” which shows the sequence of events relating to that part of the investigation from the time when the co‑conspirator was intercepted, until the time when the appellant was sentenced, in respect of both STCC 116/2019 and the present case STCC 2624/2019.  The respondent submitted that the two offences were separate and distinct; the one co-conspirator in each of the two cases ie the domestic helper is a different person to the other; they were intercepted 7 months apart; the appellant was charged with the first offence more than 3 months before the co-conspirator for the second offence was even intercepted; the appellant was charged in the present case only two months after the relevant co-conspirator was intercepted hence there was no delay in bringing the case to court.

11.  Regarding point (c) of the appellant’s submissions, the respondent has not directly engaged the point.  Instead, the respondent submitted that the role of the appellant is markedly different from that of the defendant in the case of Bodomo Marissa Flores, supra; there, the defendant was the domestic helper who was provided with the bogus employment contract whereas here, the appellant was the one who arranged for the bogus employment contract; hence the appellant’s role was similar to the defendant in Attorney General v Ching Wai Fan Carina, supra.

12.  The respondent continued to submit that, in Ching, the defendant there, like the appellant here, prepared bogus employment contracts and false supporting documents for Filipino domestic helpers so as to deceive the Immigration Department to grant employment visa extension of stay and re-entry to these domestic helpers and she did so for monetary rewards; that she was convicted of 5 counts of conspiracy to defraud on her own pleas and was sentenced to one year’s imprisonment on each count, to be served concurrently.  The respondent remarked that, although the Court of Appeal there upheld the sentence, Macdougall VP (as he then was) said at 220G,

“While we consider that that was somewhat a benevolent view and that the level of sentence for this type of offence has hitherto been unduly low, we are not prepared to say that in such a sentencing climate the judge was wrong to have passed the sentences which he did. However, those who commit this type of offence in the future can expect to be dealt with more severely than this respondent and the defendants in Durup, Mak and other cases.”

13.  The respondent submitted, seen in this light, the starting point of 12 months’ imprisonment in the present case was indeed a generous one given the seriousness of the offence.

14.  Regarding point (d) of the appellant’s submissions, the respondent submitted that as can be seen from the facts (see for example the Brief Facts of the two cases supplied by the appellant as Annexes 1 and 2), false instruments were seized; and as can be seen from the Chronology, the co-conspirators were charged and convicted on their own pleas.  In any event, the respondent submitted, whether any false documents were seized or whether any co-conspirators were prosecuted and convicted ought not make any difference to the appellant’s sentence.

15.  Regarding point (e) of the appellant’s submissions, the respondent relied on HKSAR v Leung Ting Fung & Anor [2015] 1 HKC 290, para 36, to submit that the principle of totality clearly applies to the sentencing of an offender who is already serving a sentence.  The respondent submitted that taking a global view of the appellant’s criminality in the two offences, a total sentence of 17 months’ imprisonment (for one conviction after trial (STCC 116/2019) and another on his guilty plea) can never be deemed to be excessive.

16.  Regarding point (f) of the appellant’s submissions, with respect to the respondent, I do not think the respondent has engaged the point in their submissions.

Considerations

17.  Regarding points (a) and (b) of the appellant’s submissions, I entirely agree with the respondent’s submissions, there is no evidence of any delay on the part of the Immigration Department or the prosecution in bringing the present case to court.  There is no merit in points (a) and (b).

18.  Regarding point (c) of the appellant’s submissions, with respect to the magistrate, I agree that he has misapplied the case of HKSAR v Bodomo Marissa Flores.  He has done so on two fronts.  The first is that according to that case, the normal starting point for a domestic helper who made misrepresentation to an immigration officer not involving the use of a false travel document is 6 months; the magistrate has mistakenly referred to the part of the judgment which relates to an offender who has possessed or used a forged travel document.  The second is that Bodomo is not applicable to the present case.  As the respondent has implied, that case is more applicable to the domestic helper who has entered into the bogus employment contract.  The appellant’s role is wholly different; and he has been charged, rightly in my view, with the far more serious offence of Conspiracy to defraud.  The correct authority for guidance is Attorney General v Ching Wai Fan Carina, supra.

19.  Seen in this light, and with Mcdougall VP’s dicta cited above in the back of one’s mind, the starting point adopted by the magistrate was correctly described as being generous.  For myself, I would say that it is over-generous.  The reason is that one must not forget that the overall starting point adopted by the sentencing judge in Ching was “two years at least”: at 219G; and that was described by Mcdougall VP as belonging to a level of sentence that was unduly low.

20.  While the appellant is technically correct in what he submitted in point (c), the overall effect is that it does not assist him because Bodomo is not the case to look to in the type of offences committed by the appellant.

21.  Regarding point (d) of the appellant’s submissions, see my observations on Ching in the section relating to appellant’s point (c) above.  I also agree with the respondent’s submissions.  There is no merit in the appellant’s point (d).

22.  Regarding point (e) of the appellant’s submissions, there is no evidence to suggest that the magistrate has failed to consider the totality principle.  All the indications suggest that he has.  Given what I have said about 12 months being an over-generous starting point (that also goes with the sentence of 9 months imposed by another magistrate after trial in STCC 116/2019), the overall sentence of 17 months cannot be described as disproportionate in the circumstances of this prolonged period of the appellant’s conduct.  In this regard, I would also add that the magistrate’s description of the period within which the first offence took place was incomplete – he described it as “on a date unknown in August and 10 June 2017”.  That led to his saying “both offences took place in the same year”.  Having had the benefit of reading the Brief Facts of the first case (STCC 116/2019) provided by the appellant, I believe the correct period should be “between a date unknown in August 2015 and 10 June 2017”. With this revelation, the serious nature of the first offence is amply exemplified.  Somehow, the appellant got a windfall for an overall sentence of 17 months on the two offences.  The appellant cannot really be heard to complain.

23.  Regarding point (f) of the appellant’s submissions, I understand the appellant to be saying, since the two co-conspirators were already in Hong Kong as domestic helpers when they applied for extension of stay on the strength of bogus employment contracts, that has nothing to do with a breach of legislative control over import of foreign domestic helpers.  Whilst that is technically correct, what the appellant had done interfered with the legislative control over continuation of stay of foreign domestic helpers in Hong Kong, a course of conduct which is at least equally culpable.

24.  None of the points raised helps the appellant.

25.  The appeal against sentence has no merits.

26.  The sentence including the order as to consecutiveness if anything is lenient.

Conclusion

27.  For the above reasons, the appeal against sentence is dismissed.  I confirm the sentence imposed.