R v. LOH WAH THEAM

IN THE COURT OF APPEAL

1996, No. 223
(Criminal)

_______________

________________

__________________

J U D G M E N T

__________________

Saied, J. (giving the judgment of the Court):

1. The applicant, who is a Malyasian and had come to Hong Kong in 1972, was the 3rd defendant in an indictment against five persons, and was charged in the 2nd count with aiding and abetting the breach of condition of stay contrary to section 89 of the Criminal Procedure Code (Cap.221) and section 41 of the Immigration Ordinance (Cap.115), and in counts 3, 4, 5 and 6 with aiding and abetting the making of false representation to an Immigration Officer contrary to section 89 of Cap.221 and section 42(1)(a) of the Immigration Ordinance. To these charges he pleaded guilty and was sentenced by a District Court judge on count 2 to one month's imprisonment and on each of the remaining four counts to 2 1/2 years imprisonment, the sentences being concurrent. He is now appealing against those sentences.

2. According to the admitted facts Counts 2 and 3 related to one Filipino female domestic helper for whom the applicant agreed to act as her bogus employer and give her the requisite employment contract and other supporting papers falsely stating that he would employ her to assist her to remain in Hong Kong for a fee of $8,000 which was paid in May 1994. With those papers she applied for and was given an extension visa by the Immigration Department in May 1995. During the period October 1994 and June 1995 she took up unapproved employment with some one else and never worked for the applicant.

3. The remaining three counts, i.e., counts 4, 5 and 6, were in respect of three different female domestic helpers to whom the applicant knowingly provided false domestic helper employment contracts with supporting documents on the basis of which those women applied for and obtained extension visas to remain in Hong Kong to work as domestic helpers for the applicant, which they never did. From two of those women he obtained $8,000 and $4,000; the third had previously worked for the applicant and from her he did not take any money for providing her with the false papers.

4. The applicant had a clear record and it was submitted on his behalf that he was eager to help his South East Asian friends, a claim which the sentencing judge did not accept save for the 6th count in which no payment was made to him. The background report which had been called for indicated that he was keen on horse racing and gambling which had resulted in debts and some money problems for him. In sentencing him the judge said:

"The tariff for sentences on this type of offence were considered earlier in the case of Durup, Crim.App. 194 of 1986, where the guideline, some years ago, was considered to be 3 years. Since then, the Court of Appeal has indicated that that guideline tariff should be increased upwards to around 5 years to take account of the increase in this type of offence.

In November of 1995 an appeal was heard in respect of a case very similar on facts, that was R v WONG Ho-Kay, Crim.App. No.232 of 1995. There, five offences of this nature were dealt with, and after trial a 3 year sentence was imposed for each offence. The modus operandi was identical to the one operated in this case and the payments for the service varied between $4,000 and $8,000. The Court of Appeal considered that these offences 'struck at the root of the local system, whereby domestic helpers are allowed into the territory, provided they have valid and approved contracts.' Claims on that defendant's behalf, that the sentences were excessive, were dismissed.

It is not clear in that particular case what starting point the judge adopted, but having considered the nature of this offence and its general prevalence, I consider that 4 years as a starting point for an offence of this nature is not inappropriate."

This was the starting point for counts 3,4, 5 and 6 and the judge then went on to discount it to 2 1/2 years imprisonment taking into account the pleas of guilty and his clear record. For count 2, she imposed a term of one month.

5. The applicant's amended perfected grounds of appeal submit that the sentencing judge erred in principle in taking an erroneous starting point of 5 years imprisonment; that at the time of sentencing the tariff was 3 years imprisonment as set out in Durup (supra) and that the judge erred in relying on Wong Ho-kay (supra) which was decided on 1st October 1995, over two months after the applicant's last offence.

6. As seen already the sentencing judge did not cite the authority which she had in mind when she referred to this Court having indicated that the "guideline tariff should be increased upwards to around 5 years to take account of the increase in this type of offence." We have been assured by counsel that they have been unable to locate any such case where the so-called tariff may have been enhanced. We do not think it is right that such a comment should be made without citing the case from which the extract is taken. We take this opportunity also to correct the impression which in our opinion is quite erroneous that Durup (supra) laid down any sentencing guidelines in respect of offences under section 42(1)(a) of the Immigration Ordinance. What was said by this Court related only to the facts of that case. Where this Court intends to provide sentencing tariffs for any specific offence it makes it clear that the case is a guideline case. To say that Durup is such a tariff or guideline case is a misnomer.

7. Mr. Donald, also referred to the case of CHING Wai-Fan Carina [1995]2 HKC 217 which was a Review Application where the respondent, who had at first been running a business of her own and later had been assisting another friend who had a travel agency whose business included processing both genuine and bogus domestic helper contracts, had pleaded guilty to five charges of conspiracies to defraud contrary to the common law and was ordered to serve concurrent sentences of 12 months' imprisonment for each offence, the sentencing judge proceeding on the principle of totality having taken 2 years as his starting point. Learned counsel for the applicant submitted that in WONG Ho-Kay (supra), which was decided on 1st October 1995, i.e., after the offences to which the applicant had pleaded guilty were committed, the appellant assisted domestic helpers from the Philippines to come to Hong Kong or remain in Hong Kong under false contracts of employment and for payment supplied bogus employment contracts and false supporting documents, had been convicted after trial of five similar offences under section 42(1)(a) of Cap. 115, and sentenced to 3 years' imprisonment on each count which was upheld on appeal.

Based on those cases it was submitted that the starting point of 4 years in the present case was manifestly high. It is clear from the cases cited before us that sentences were passed as the facts of each individual case merited. It is correct to say that the applicant was not in any sort of a business operation as, for example, were the defendants in Durup and Wong, just as it is correct to say that bringing into Hong Kong outsiders illegally or on false documents is a more serious offence than assisting those already in the Territory to stay by providing them with such false documents. However, the trial judge was bound to pay heed and give effect to what this Court had said in Ching Wai Fan Carina (supra) where, after considering Durup, Macdougall V.-P. said (at p.220):

"In R v Mak Chun Hin (Crim.App 458/92, unreported), which was a case relating to a conspiracy in the course of which forged contracts of employment were created to support the grant of employment visas to prospective employees and which involved millions of dollars, another division of this court expressed the view that a sentence in the region of one year's imprisonment would have been appropriate. 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."

The offences to which the applicant had pleaded guilty were of the same type as the conspiracies in Ching Wai Fan Carina.

8. In our opinion, while the trial judge was mistaken in thinking that she was bound to follow Durup and was wrong to have referred to a decision which we are informed does not exist, she was nevertheless bound to give effect to the dictum of Macdougall V.-P. Mr Donald submitted that the trial judge should not have referred to Wong Ho-kay (supra) as it had come after the offences in the present case. It seems to us that the trial judge had mentioned that authority to highlight the view this Court has of such offences which was not too dissimilar to dictum just cited and was stated thus:

"In this case he involved others in the use of false documents and he received substantial sums of money. 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."

To that extent she was not in error. She was also entitled to take into account the multiplicity of similar offences which entitled her to award a higher sentence than if there had been only one offence. We are of the opinion that the starting point of four years which the trial judge had taken reflected both those matters and, taking into account the mitigatory factors, reducing it to 2½ years which, in the circumstances of the case, was amply justified and was neither manifestly excessive nor wrong in principle. The application for leave to appeal against these sentences is refused.