THE QUEEN v. TSE NGAN YUET AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1 OF 1995

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JUDGMENT

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1. Both of these appellants, who were sisters, were convicted after trial of conspiracy to defraud. The allegation was that they posed as employers for certain Filipinos and Filipinas who were then brought to Hong Kong, purportedly as domestic helpers, on the strength of employment contracts signed by the appellants. The employees, so-called, after coming to Hong Kong would obtain employment elsewhere. It was further alleged that the appellants received a fee of $5,000 for each of six contracts. The learned magistrate convicted the 1st appellant on the basis that she was guilty in respect of only three of these contracts and the 2nd appellant on the basis that she was guilty in respect of only one. The 1st appellant was sentenced to a term of 6 months' immediate imprisonment and the 2nd appellant was sentenced to 6 months' imprisonment suspended for 2 years.

2. At the outset it was the expressed intention of the 1st appellant, in her grounds of appeal, that she would abandon her appeal against conviction.

3. Mr McGowan advanced a number of grounds of appeal on behalf of the 2nd appellant against her conviction. The first of these grounds was that the learned magistrate had failed to consider at any time the essential ingredient of dishonesty. It was further submitted that such an omission amounted to a material irregularity and that the appeal should be allowed on that basis. One of the essential ingredients of a conspiracy to defraud charge is the element of dishonesty. It had to be proved that in conspiring to do what they did, the appellants were acting dishonestly; the word "dishonestly" to be defined in accordance with the judgment of the court in the case R. v. Glosh [1982] QB 1053. In other words, it had to be proved that ordinary and decent people would regard what was done as dishonest and further that the appellants must have known that what they were doing was dishonest by the standards of ordinary and decent people. That element of the charge was never specifically mentioned by the learned magistrate at any stage in her findings. As I felt that this ground of appeal should be fully argued, and as I was about to go on leave, I invited Counsel to file written submissions in relation to it. Mr Grossman, who appeared on the appeal for the 1st appellant, told me that, while his grounds of appeal indicated that the 1st appellant would abandon her appeal against conviction, he had, upon reflecting on this ground of appeal, decided that he should adopt what was said on behalf of the 2nd appellant, in relation to the element of dishonesty, and make no further submissions. However, I invited him to assist the court by making full written submissions in relation to it as well as counsel for the 2nd appellant and counsel for the Crown. I heard the submissions of the 2nd appellant in relation to her other grounds, but decided to await the filing of the grounds of appeal in relation to the matter of dishonesty, before I came to any decision upon the 2nd appellant's appeal against conviction.

4. I then went on to deal with the 1st appellant's appeal against sentence. It was urged on her behalf that the learned magistrate had made two errors in relation to her findings on the facts of this case which went to the matter of sentence. The most important of these errors was that she appeared to find, as a matter of, fact that the 1st appellant had accepted sums of $5,000 in relation to two of the contracts. She did this relying on the evidence of PW1. She said this:

"I accepted, judging from all the evidence I heard in court, the fact that the Manzano contract was never in existence and the demeanour of PW1 in the witness box, proven to be beyond reasonable doubt that App1 had accepted two sums of HK$5,000 for the contracts of Lagasca and Manzano."

She could not properly come to this conclusion on the evidence of PW1, which Mr McMaster, appearing for the Crown on the appeal, properly conceded was at best unsatisfactory and at worst wholly unreliable. That left the evidence of the appellant's statement under caution in which she claimed that she had received no money in relation to any of these contracts. The magistrate, therefore, ought to have sentenced the appellant on the basis that she had not received any money in relation to these contracts.

5. The magistrate in effect sentenced the appellant on the basis that she had been involved in the Manzano, Buen and Bermas contracts. In relation to the Bermas contract, the learned magistrate found that the 1st appellant had been involved in its dissolution. She said that:

"Immigration Officer, Tai Lap Chi (PW7), testified that in the immigration record no termination nor cancellation letter been received concerning the 6 helpers except on 19th July 1993 but a letter of dissolution of the Bermas's contract by mutual agreement signed in the name of Judy Tsui Ngan Yuet was received."

6. This was an error because the exhibit, Exh.69, refers to the Buen contract and not the Bermas contract. As the learned magistrate had relied on that piece of evidence to convict the 1st appellant in relation to the Bermas contract, that conviction clearly could not stand. The position therefore was that the learned magistrate in fact could only sentence on the basis of two contracts.

7. I was greatly helped in the matter of sentence by a list of authorities supplied to me by the Crown. I respectfully agreed with the judgment of Leonard J. in R. v. Chan Man Sum Clement, Chow Shui Hung MA267/1993 where he said:

"Offences designed to interfere with the control of immigration into Hong Kong are undoubtedly serious and will often but not always attract immediate sentences of imprisonment. Each case depends upon its particular facts."

In R. v. Marie Edward Cyril Durup, C.A.194 of 1986 the appellant faced 27 charges in relation to matters similar to those dealt with in the present case. The Court of Appeal reduced a sentence of 2 years to one of 12 months. In R. v. Hsu Sai Man and Josephine B. Mendoza, A.R. No. 12/1986, the Court of Appeal dealt with a case in which 27 Filipino girls were involved, and a sum of $2,000 was charged by the respondent in that case for each of these girls. The 1st respondent was sentenced to imprisonment of 15 months suspended for 3 years. The Court of Appeal increased this to an immediate custodial sentence of 12 months. In R. v. Mak Chun Hin C.A.458/1992, the Court was dealing with a conspiracy to defraud involving similar matters to those involved in this case. It was described by Silk V-P who wrote the judgment of the court as "a large scale scheme involving very substantial amounts of money being paid by these domestic or other employees for their false papers." In that case, the sentence of 18 months was reduced on appeal to 6 months. In R. v. Ching Wai Fan, Carina, A.R.No.10/1994, the Court of Appeal was dealing with an appellant who had been found guilty on 5 counts of conspiracy to defraud and had received 12 months concurrent sentences. In that case, each domestic helper who was assisted had been charged between $10,000 to 15,000 for the service. The Court of Appeal refused to interfere with the sentence in that case.

8. It seemed to me that I was dealing with a case which was somewhat different and less serious. Sentence should have been passed on the basis that no money was received by the appellant in relation to these false contracts, and that only two contracts were involved. Taking these matters with the other mitigating factors, including the situation regarding her mentally handicapped daughter, and the previous excellent record of the appellant, and having regard to the authorities put before me, I was persuaded that this was indeed a case where a sentence of imprisonment could properly be suspended. I therefore allowed the appeal against sentence to that extent and ordered that the sentence of 6 months be suspended for one year.

9. I have now returned from leave and read counsels' written submissions in relation to the matter of dishonesty, and whether or not the learned magistrate's failure to specifically direct herself on the question of dishonesty, in accordance with the judgment of the court, in the R. v. Glosh [1982] QB 1053, was fatal to the conviction.

10. A reading of all the learned magistrate's findings can leave one in no doubt but that she was aware that the Crown had to establish that the contracts of employment entered into between the appellants and the Filipinos and Filipinas were "bogus", in the sense that there was no intention to employ them as domestic helpers, as the contracts suggested. The learned magistrate found that the said contracts were "bogus", and convicted the appellants accordingly. In other words, she found that the appellants had no intention, when signing these contracts, of employing the Filipinos or Filipinas as their domestic helpers.

11. The Crown argued, in effect, that if these contracts were "bogus", and the appellants knew that they were "bogus", then their intention to cheat the Immigration Department was obvious, and it was not necessary, therefore, in the circumstances of this case, for the magistrate to specifically direct herself on the meaning of dishonesty. In other words, it was obvious that she had found that the appellants acted dishonestly in entering into bogus contracts. Despite the written arguments and the authorities placed before me by counsel for the appellants, I accepted the submissions of the Crown on this matter. I make specific reference to the authority of the R. v. Lam Miu Wah MA889 of 1992 when Bewley, J. said :

"Even if the magistrate had found himself able to infer that the appellant had obtained a gain, he signally failed to find that she had done so dishonestly. Dishonesty is an essential ingredient of the offence."

And later he said:

"Counsel for the respondent sought to sustain the convictions on the basis that a professional magistrate would be aware of the essential ingredients of the offence. This is not good enough. The magistrate's failure to make any findings on such crucial matters means that the appeal must be allowed and the convictions quashed."

Mr McGowan relied on this authority and submitted that I should adopt it and allow the appeals because we were dealing also with a case in which a magistrate failed to direct herself on the matter of dishonesty.

12. I read the case of Lam Miu Wah with care, and I have come to the conclusion that the cases can be distinguished on their facts. In Lam Miu Wah, there was very real doubt whether the appellant had acted dishonestly, and the evidence supported an inference that she had not equally as much as it supported an inference that she had. There was, therefore, a need for the magistrate to demonstrate in the findings that he had applied the proper test for dishonesty before convicting. There was no such difficulty in the present case. Accepting the magistrate's findings of fact that the contracts were "bogus" and that the appellants knew that they were bogus, the only reasonable inference to be drawn from these findings was that the appellants had acted dishonestly.

13. In so far as this was the only ground of appeal advanced by the 1st appellant, I dismissed her appeal against conviction.

14. Mr McGowan advanced other grounds of appeal on behalf of the 2nd appellant. However, I was satisfied that on the whole of the evidence, including the evidence of the use of the 2nd appellant's identity card and tax return form, the evidence of the hand-writing expert that the hand-writing on the contract could be the hand-writing of the 2nd appellant, even though he did allow that it could also be a forgery, and taking that evidence together with her presence at the home for the aged when the Customs Department had uncovered the falsity of the contract and moved in to investigate, it was my view that the learned magistrate had sufficient evidence from which she could draw the inference beyond reasonable doubt that the 2nd appellant was dishonestly involved in that contract. I therefore also dismissed her appeal against conviction.