HKSAR v. WONG ERNI WAHYUNING

DCCC 638/2019

[2020] HKDC 379

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 638 OF 2019

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REASONS FOR VERDICT

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1.  Having considered all the evidence and the submissions made by both the prosecution and defence counsel, the court is satisfied beyond a reasonable doubt that the prosecution has proved their case for Charges 2, 4, 6 to 11. The defendant is accordingly found guilty of these charges. The defendant is, however, found not guilty of Charge 1.

2.  These are the reasons for the above verdicts now. 

The charges

3.  The defendant faces a total of nine charges in this trial; that is, Charges 1, 2, 4 and 6 to 11 on the re-amended charge sheet.

4.  The first four charges, namely 1, 2, 4 and 6 are conspiracy to defraud, brought under the Common Law and section 159C(6) of the Crimes Ordinance (Cap 200), and also sections 2(3) and 4(2) of the Criminal Jurisdiction Ordinance, (Cap 461).

5.  The other five charges, namely Charges 7 to 11, are using a false instrument and these charges are brought under section 73, Crimes Ordinance (Cap 200).

6.  The prosecution having offered no evidence against the defendant on Charges 3 and 5 on the re-amended charge sheet, the defendant has been acquitted of these two charges and the court is also of course no longer concerned with them.

7.  Now, for the sake of convenience, as can be seen shortly, the nine charges could be divided into two groups:  Charges 1, 2, 4 and 6 are in the first group, and the remaining five charges, namely 7 to 11, in the second.  Except for the dates of offence, the co-conspirators named in the charges and the persons referred to in the particulars of the representations said to have been made to the Director of Immigration, the first four charges are almost identical in the way they are framed.

8.  The particulars of Charge 1 read as follows:-

“WONG ERNI-WAHYUNING, between a day unknown in 2013 and the 26th day of July, 2015, both dates inclusive, in Hong Kong, conspired with Yana-Krisdianti (also known as Yana Krisdianti and Krisdianti Yana) and other persons unknown, to defraud the Director of Immigration of the Government of the Hong Kong Special Administrative Region and his officers, by dishonestly and falsely representing to the Director and his officers that the said Yana-Krisdianti was employed by Chan Lap-sun, Louis, and thereby to induce the said Director and his officers to act contrary to their public duty, namely to approve the said Yana-Krisdianti entry employment visa in Hong Kong in which they would not otherwise approve.”

Yana-Krisdianti, whom I shall simply call “Yana” from this point onward, is PW1 in the trial, whereas the said Chan Lap Sun, Louis, was called as PW2.

9.  Now, Charge 2 is said to have been committed between a day unknown in 2013 and 25 January 2014, with Rohaela and other persons unknown.  Rohaela and the defendant are said to have conspired to defraud the Director of Immigration by dishonestly and falsely representing to the Director and his officers that Rohaela was employed by Tang Wah-fai, thereby to induce the Director and his officers to act contrary to their public duty, namely to approve the entry employment visa of Rohaela which they would not otherwise approve.  Rohaela was called as PW3 and Tang Wah Fai, PW4 in this trial.

10.  Charge 4 is said to have been committed between a day unknown in 2015 and 21 January 2018 with Ayun-Dwijayanti, whom I will simply call “Ayun”, and other persons unknown.  And the dishonest and false representation being that the said Ayun was employed by one, Sin Chi-fai.  Ayun and Sin Chi-fai were called as PW5 and PW6, respectively, in the trial.

11.  Lastly, Charge 6 is said to have been committed between a day unknown in 2015 and 30 October 2016 with Alarcio Rose Pascua, whom I shall simply call “Alarcio”, and other persons unknown.  And the representation being that the said Alarcio was employed by Cheung Tsz-kin.  Alarcio and Cheung were called as PW7 and PW8 in the trial, respectively.

12.  Now, turning to the second group of offences.  Charge 7 reads as follows:-

“Wong Erni-Wahyuning, on or about the 19th day of December, 2016, in Hong Kong, used an instrument which was and which she knew or believed to be false, namely one copy of a Chong Hing Bank Limited passbook account numbered ...... in the name of Wong Ching-yee, with the intention of inducing the officer(s) of Immigration Department to accept it as genuine, and by reason of so accepting it to do or not to do some act to their own or any other person’s prejudice.”

13.  The remaining charges in this group are framed in an identical way.  The only difference being the dates of offence and the instrument in question. Charge 8, for instance, alleges that on 6 January 2017, the defendant used a copy of a Bank of China (Hong Kong) Limited (which I shall simply call “BOC”) passbook, in the name of Ho Chun-leung.

14.  Charge 9 alleges that on 9 March 2017, the defendant used a copy of the same BOC passbook.  Charge 10 alleges that on 5 September 2017, the defendant used a copy of a BOC deposit confirmation in the name of Yeung Kim Wa. And lastly, Charge 11 alleges that on 22 November 2017, the defendant used a copy of a BOC passbook in the name of Yu Man-kwan.

The prosecution’s case

15.  For Charges 1, 2, 4 and 6, the prosecution’s case in a nutshell is that the co-conspirators named in each of these charges approached the defendant, who ran an employment agency called J’S Employment Agency, in Hop Yick Plaza, Yuen Long, and asked her to help them to get a domestic helper visa so that they could remain in Hong Kong, but without having to work as a domestic helper for the person named as the employer in their contract and visa.  In return for a fee to be paid by the co-conspirators, the defendant agreed to help.

16.  Pursuant to the agreement, contracts with a bogus employer, together with such supporting documents, were prepared and these documents were then submitted by the defendant to the Immigration Department.  In each case, acting in the belief that the contract and the supporting documents were genuine, a visa and/or permission to stay was granted to the co-conspirator by the Immigration Department; something which the Department would not have otherwise done had they known that the documents were in fact false.

17.  As to Charges 7 to 11, the prosecution’s case is that in conducting the investigation, the Department found that the defendant had in fact used false instruments, namely the ones referred in the charges, in relation to five other visa applications involving four different employers, namely, Cheung Shuk Wa for charge 7; Ho Chun Leung for charges 8 and 9; Yeung Kim Wa, charge 10; and lastly, Yu Man Kwan of charge 11.

Problem of duplicity in relation to Charge 1

18.  Now, before I shall deal with the prosecution’s evidence, I think I should say a word about the prosecution’s case in respect of Charge 1.  As can be seen in the original opening for the prosecution, which is dated 4 May 2020, the prosecution’s case is actually a little different from what we are now seeing in the re-amended prosecution’s opening.  According to paragraph 4 of the original opening, the prosecution’s case then was that PW1, namely Yana, saw the defendant at her agency in early 2013.  On that occasion, the defendant offered to arrange a false domestic helper contract for PW1 at $29,000 and PW1 would not be required to work for the employer stated in the contract after the visa application was approved.  PW1 agreed and paid the defendant the said $29,000 by two instalments.  A visa was then issued to her and she used it to stay in Hong Kong, doing something else instead of working for the employer stated in the contract or visa.

19.  According to paragraphs 4 and 6 of the same original opening, in early 2015, the defendant contacted PW1 to sign on documents for extension of visa for employment contract with the same employer.  On 27 April 2015, the Immigration Department received an extension of visa application for PW1 to continue working as a domestic helper for PW2.  This application was granted and PW1 was given permission to stay in Hong Kong until 13 March 2016, together with a domestic helper entry visa.

20.  As there were two occasions when PW1 had approached the defendant for help in respect of her visas to stay in Hong Kong, one in 2013 and one in 2015, Miss Sujanani for the prosecution was asked by this court if this could have given rise to a question of duplicity.  In reply, Miss Sujanani said “No” at that stage, and that is because the extension application made in 2015 was, according to her reading of PW1’s statement to the Immigration, done gratuitously by the defendant, meaning at no extra cost.

21.  However, as the evidence of PW1 unfolded in court, it became clear that when PW1 approached the defendant in 2015 for the visa extension, she was told to pay $30,000, which she did by a few instalments.

22.  The question of duplicity was then raised by the court again with Miss Sujanani.  As pointed out by the court at that time, with two different visa applications, one in 2013 and the second one in 2015, each accompanied by a fee paid by PW1 to the defendant for the service, one had difficulty in seeing how the two transactions could have been regarded as the same conspiracy, and, as such, the prosecution would have to elect as to which of these two they would proceed with on Charge 1.

23.  After taking instructions from the Department of Justice, Miss Sujanani decided to amend the prosecution’s opening in the way as is now shown in the re-amended opening.  And, as a result of this amendment, the prosecution has elected, in effect, to focus on the 2015 transaction.  The 2013 transaction, as put by Miss Sujanani, is simply background information.  This I shall come back to later.

The issues

24.  As indicated by Mr Allan, defence counsel, both in the PTR questionnaire and in court on quite a few occasions, and as is also apparent from the way the relevant PWs were cross-examined, the real issues taken insofar as Charges 1, 2, 4 and 6 are concerned, is one of identity, namely, was the defendant the person whom PW1, PW3, PW5 and PW7 said they had approached and conspired with for the making of the false representation to the Director of Immigration and his officers, thereby to induce the latter to approve the entry employment visa which they would not otherwise approve.

25.  As to Charges 7 to 11, the real issue is whether, on the evidence put before the court, it can be satisfied so that it is sure that the defendant had used the false instruments in question.

26.  Although Mr Allan did say at one stage also that knowledge was an issue, it can be seen in due course that this is perhaps only of secondary significance.

Prosecution’s evidence

27.  The prosecution has called a total of nine live witnesses.  Namely, PW1, PW2, PW3, PW5, PW7 and PW15 to PW18.  In addition, three other witnesses, namely PW4, PW6 and PW8 had their witness statements read into court under section 65B of the Criminal Procedure Ordinance.  Their witness statements have since been marked as P75 to P78, respectively.

28.  There are, in addition, three sets of Admitted Facts produced under section 65C of the Criminal Procedures Ordinance, which were respectively marked as P74, P80 and P81.  And pursuant to the Admitted Facts, various documentary exhibits have also been placed before the court.

The Admitted Facts

29.  Here, I propose to begin with the Admitted Facts.  In paragraph 1 of P74, that is the first set of Admitted Facts, it is admitted that the defendant was the sole director of a company called J’S Employment Agency Limited, which had two businesses:  (1) J’S Employment Agency and (2) Chidi Jaya Shop, which I will simply call the “Shop” from this point onwards.

30.  According to Exhibit P1A, between January 2013 and 3 May 2015, J’S Employment Agency was operating at Shop 1C, 1/F Tung Yick Building, 8 Yu King Square, Yuen Long.  From 4 May 2015, it was operating at Shop 18A on the same floor of the same building.  Shop 18A appears to be the registered address of J’S Employment Agency Limited.  Now, the Shop, on the other hand, was situated at Shop 2A on the same floor of the same building.

31.  Paragraphs 2 to 4 of P74 relate to Charge 1.  In short, the following facts were thereby admitted:-

(a) The Immigration Department received a visa application of PW1 on 13 May 2013 to work as a domestic helper for PW2 under employment contract J256289. Together with the visa application were various supporting documents which include, among others, copies of PW1’s passport; PW2’s Hong Kong ID card; a bank account passbook and a tenancy agreement of a public housing unit where PW2 is said to have been residing at with his family and the electricity bill of the said unit. Now, both the tenancy agreement and the electricity bill were in the name of PW2’s father, one Mr Chan Mun Lun, and together these documents formed Exhibit P2. And there is also submitted to the Immigration Department the employment contract between PW1 and PW2. This was marked as P2A.

(b) On 28 May 2013, PW1 was granted permission to remain in Hong Kong as a domestic helper for PW2 until 28 May 2014, and also a domestic helper entry visa. These two documents were produced and marked as P3 and P3A, respectively.

(c) On 7 April 2014, PW1 departed Hong Kong and returned on the same day to activate her entry visa, namely P3A.

(d) On 27 April 2015, the Immigration Department received an application for extension of visa by PW1 for her to continue working as a domestic helper for PW2 under a new employment contract, number K569428. The application was marked as P4. Like Exhibit P3, the application had with it some supporting documents, the most important of which being no doubt the new employment contract, P4A.

(e) On the same day, when the application was submitted, PW1 was granted permission to remain in Hong Kong as a domestic helper for PW2 until 13 March 2016, and also a domestic helper entry visa, both of which have been produced and marked as P5 and P5A, respectively.

(f) On 24 July 2015, PW1 departed Hong Kong. She returned on 26 July 2015 to activate her domestic helper entry visa and was permitted to remain in Hong Kong as a domestic helper for PW2 until 28 May 2017.

(g) On both occasions, the Director of Immigration approved PW1’s visa application in the belief that the information and documents provided with the application were true. Had the Director known that they were not true, PW1’s application for the entry visa would not have been approved.

(h) The movement records of PW1 is also produced by consent and marked as Exhibit P6.

32.  Paragraphs 5 to 7 of P74 relate to Charge 2.  Very briefly, these are the facts admitted thereby:-

(a) On 25 July 2013, the Immigration Department received a visa application of PW3 to work as a domestic helper for PW4 under contract number J842675. Together with the application was submitted a number of supporting documents, the employment contract being one of them. And the visa application was marked in this case as P14 and the contract P14A.

(b) On 25 August 2013, PW3 arrived in Hong Kong to activate her entry visa and she was granted permission to remain in Hong Kong as a helper for PW4 until 25 August 2015.

(c) The Director of Immigration approved PW3’s application in the belief that the information and documents provided with it were true. Had the Director known that they were not, PW3’s application would not have been approved.

(d) PW3’s movement record is likewise produced.

33.  Paragraphs 8 to 10 of P74 relate to Charge 4.  They are framed in more or less the same way as above, and include, among others, the following matters:-

(a) In February 2016, the Immigration Department received a visa application for PW5 for her to work as a domestic helper for PW6 under employment contract number L331648.

(b) On 29 February 2016, in belief of the information provided to it, together with the application were true, PW5 was granted an entry visa by the Immigration Department, which she activated on the same upon her arrival in Hong Kong.

34.  Paragraphs 11 to 13 of the same set of Admitted Facts, ie P74, are in relation to Charge 6.  And likewise, it is framed in the same way as before. Suffice it for me to say that the facts admitted include, among others, the following matters:-

(a) In February 2015, the Immigration Department received a visa application for PW7 for her to work as domestic helper for PW8 under contract number K878309. The visa application, together with a number of supporting documents were produced and marked as P44. The employment contract, which is also submitted, was marked as P44A.

(b) On 26 February 2015, in the belief of the information provided in and with the application was true, PW7 was granted both permission to remain in Hong Kong and an entry visa. These documents were respectively marked as P45 and P45A.

(c) On 25 July 2015, PW7 departed Hong Kong. On 19 August 2015, she returned to Hong Kong and activated her entry which allowed her to remain in Hong Kong as a domestic helper for PW8 until 26 February 2017.

35.  Paragraphs 14 to 15 of P74 are in relation to Charges 7 to 11.  In a gist, it is admitted by the parties that as part of the Immigration Department’s investigation, the Department looked into the computer records and found the instruments named in the five charges, and said to be false, were included in the foreign domestic helpers’ visa applications submitted to the Department by different employers, the names of whom have been referred to in the charges. Certified copies of these visa applications and the supporting documents were also produced thereunder and marked as Exhibit P52, P54, P55, P57 and P59, respectively.

36.  Paragraphs 16 to 17 of P74 deal with the finding of further exhibits from the defendant’s office at Shop 18A on 13 March 2018.  These included, among others, copies of the application forms, the contracts, employers’ purported bank passbooks in respect of Charges 1 to 6 and the purported copies of the bank passbooks in the names of PW17 and PW18 respectively.

37.  Paragraph 18 of P74 deals with the defendant’s first arrest on 14 March 2018 and her re-arrest on 12 March 2019.

38.  Paragraphs 19 to 29 deal with what is called the photographic ID parades conducted with PW1, PW3, PW5, PW7 and PW15 to PW18 on divers days and times between the 8 April and 23 May 2019.  These photo ID parades followed the defendant’s refusal to attend an ID parade.

39.  According to paragraphs 19 to 29, the photo IDs were all conducted fairly and properly.  And the aforesaid witnesses all picked out a photo from the albums they were asked to look at.  In the case of PW1, she identified the person in photo 4 of the album as Susan Wong.  In the case of PW3, the identified the person in photo 3 of the album as Susan.  In the case of PW5, she identified the person in photo 1 of the album as Susan.  In the case of PW7, she identified the person in photo 12 of the album as Susan.  In the case of PW15, she identified the person in photo 10 of the album she was shown as Susan.  In the case of PW16, he identified the person in photo 3 of the album as Susan Wong.  In the case of PW17, he identified the person in photo 4 of the album as Ms. Susan Wong.  And lastly, in the case of PW18, he identified the person in photo 9 as Susan Wong.

40.  Now, it is convenient for me to add at this point that having looked at the photos picked out by the aforesaid witnesses, I am satisfied that the person shown in the photos picked out by them is the defendant now in court.

41.  Now, that leaves me only with paragraphs 30 to 33 of P74.  Paragraphs 30 to 32 essentially deal with the integrity of the chain of documentary exhibits and the accuracy of the English translation of P62.  Paragraph 33 says that the defendant has a clear record.  Now, that is something which I have taken into account in my assessment when considering the defendant’s propensity to commit an offence.  As the defendant has chosen not to testify, as is her right, it has no relevance when it comes to her credibility.

42.  In respect of the second set of Admitted Facts, ie P80, all that I need to say is that it caters to the production of the witness statements given by PW4, PW6 and PW8 and the cross-referencing of the documents attached to their statements with the documentary exhibits produced in court.

43.  As to the third set of Admitted Facts, namely P81, it simply provides for two things: one, the production of the bank passbooks kept by PW15, PW16 and PW18.  These passbooks were produced and marked as P53, P56 and P61, respectively.  And they relate to Charges 7, 8, 9 and 11.

44.  The second thing being dealt with in P81 is the movement record of the defendant for the period between 1 January 2011 and 1 January 2020.  This document is produced as Exhibit D1 and I shall return to this when dealing with the evidence of PW7 and PW8.

PW1’s Evidence

45.  I turn next to the evidence now of PW1, Yana.  PW1 is an Indonesian lady who was born in 1980.  She first came to Hong Kong in 2006 or 2007. Having worked for the same employer, one Madam Choi for six years or so, she decided to have a change.  She had heard from someone that Susan Wong’s agency could help her to stay out, meaning, as it became clear when her evidence unfolded, that she could get an employment contract and the necessary permission and/or visa from the Immigration Department to stay in Hong Kong without having to live with or work for the employer stated in the contract. That way, PW1 could take up such part-time jobs as she may be able to land her hands on.

46.  In early 2013, PW1 contacted Susan Wong’s agency, which was in Yuen Long and was called J’S Agency.  She said, however, that for the dealings she had with the agency in 2013, she really could not remember if she contacted Susan Wong herself or just someone else of the agency.  She said when she first went to the agency, she talked to a person who told her that if she wanted to sign, which I take to mean signing a contract, she had to pay so much, which she believed was either $26,000 or $28,000.  After thinking about it, PW1 decided to go ahead and gave the woman of the agency her last employment contract, meaning the one with Madam Choi, PW1’s own passport and she said probably her HKID as well.

47.  Now, when she was asked to look at Exhibit P2A, the employment contract with PW2, PW1 identified her signature on the document and said she was asked to sign on this by the person of the agency.  But when she was asked to look at the visa application, P2, PW1 said although the signatures there looked like hers, they were not.  In any event, PW1 said after she paid, she eventually got the permission and the visa, and on the strength of these, she remained in Hong Kong, but without working for PW2.

48.  In 2015, PW1 said she sought help from Susan Wong before her last contract, that is, P2A, expired.  She said she called first and then went up to the agency herself.  She said this time she is sure that she met Susan Wong herself.  PW1 said she asked the defendant, ie Susan Wong, if her contract could be renewed.  In reply, Susan Wong, ie the defendant, said “Yes”, but PW1 had to pay $30,000.  When defendant told her at about the same time that she would be with the same employer, PW1 agreed to the deal.

49.  When PW1 was asked to look first at Exhibit P4A, that is, the new contract, and later, Exhibit P4, the visa application for 2015, PW1 said the signatures in both of these documents did not look like hers.  According to her recollection, she said she did not seem to have signed anything in 2015. Subsequently, PW1 got her visa and for this she said she had paid the defendant $30,000 by two instalments.  The first one was made before she got the visa and the second one was after.  She was also in fact given a copy of the contract, ie P4A.

50.  PW1 said also in her evidence that for the dealings in 2015 she had gone up to J’S Agency twice.  The first time was when she went up to give the defendant her passport and the first $15,000, and the second time afterwards. PW1 said they were using Indonesian when talking to each other.

51.  Now, after confirming that she had picked out Susan in the photo ID parade on 22 May 2009, PW1 also identified the defendant in court as Susan.  I will say a few words about the identification she made over the parade and in court later.

52.  Now, for her dealings with the defendant, she said that she has been charged with and, on her plea, convicted of the offence of conspiracy to defraud on 18 April 2019.  The charge, which was read out by the prosecutor in court, was framed in almost identical terms to Charge 1 herein.  And PW1 was sentenced to 3 months’ imprisonment on 25 June 2019, which term she had finished serving.

53.  Under cross-examination, PW1 admitted that there were differences between her evidence in court and what she had said in her witness statement to the Immigration Department, the one dated 8 May 2019.  Now, in this statement of hers:-

(a) PW1 gave the impression that when she went to the J’S Agency in the beginning of 2013, she had met Susan Wong personally on that occasion and it was also the defendant who called her in around April 2013 to ask her to come to the agency to get the visa.

(b) When talking about the payments she made in 2013, PW1 said in the statement that it was by two instalments; namely $14,000 and $15,000, respectively, making therefore a total of $29,000.

(c) There is no mention in the statement that the defendant had asked for, or that she had paid the defendant, $30,000 in 2015 at all. In fact, in her witness statement there is no mention of her meeting Susan in 2015 (although in this connection it should be noted that in PW1’s statement she did mention that in early 2015 Susan had arranged a false contract for her to sign and that Susan called her later when she was back in Indonesia to tell her that her visa was ready).

(d) In PW1’s statement, the only particular she gave of Susan Wong was that she was about 40 years of age. There is no mention by her in the statement of Susan’s build or the fact that she had curly hair.

54.  In one of Mr Allan’s last questions to PW1, it was put by him that, “I’m not suggesting that you had never met PW1, but according to your court testimony you did not meet Susan Wong before 2015.”  PW1 agreed to that.  When Mr Allan further put to PW1 that, “All along you dealt with a middle person”, PW1 agreed.  About the differences between what is said in her statement and her evidence in court, PW1 explained that at the time when she gave her statement, she was afraid, as she was in trouble herself; that she was confused and may well have gotten some of the things, like the year and so on, wrong in the statement.  She was, however, adamant that she had given the defendant a total of $30,000 in 2015.  That, she said, was in two instalments, each of $15,000.

PW2

55.  I turn now to the evidence of PW2.  Now, PW2 is one of the four purported employers involved in the first four charges.  He is the only one called to testify in court.  His statement is adopted by him and produced in court as P75, with the edited version, P75A.  His evidence can be summarised as follows:-

(a) He had never seen nor signed Exhibit P2, P2A, P4, P4A. The signatures appearing there as the employer’s simply were not his.

(b) The address appearing in the above documents, a unit in Tai Wo House, Wo Che Estate in Shatin was and is indeed his. It is a public housing unit held in his father’s name.

(c) The tenancy agreement submitted together with P2 was also indeed the tenancy agreement for the family unit. He had, however, no idea, how or why it was being included in the applications under P2 and P4.

(d) PW2 said he had an account with HSBC and the copy of the first page of the bank passbook submitted to the Immigration Department with P2 looks like the one he had. He said, however, that it is a bank account which he had not used for a long time and, more importantly, he had never had the sort of money one sees in the said passbook.

Although a few questions were asked of PW2, none of them were of any significance and I do not think it is necessary for me to refer to them here.

PW3

56.  Like PW1, PW3 is a lady from Indonesia.  She was born on 28 October 1975.  She first came to Hong Kong in 1998 as a domestic helper.  She resigned from her post after working for a year and returned home.  In 2001, she came back to Hong Kong again to work as a domestic helper and remained in that capacity up to 2012.

57.  In that year, PW3 was working with one Mr Ngan and his family.  However, after working for Ngan’s family for about 8 months, PW3 decided to terminate her contract.  But PW3 had wanted to continue to stay in Hong Kong to earn her living.  What she did not want was to stay in with a fixed employer.  For that purpose, she said she was introduced by a friend to Susan, J’S Employment Agency, Yuen Long.  A lot of people, PW3 said, called Susan “Mammy Susan”.

58.  In July 2013, PW3 went to see Susan and asked Susan how one could have a visa without having to stay with or work for an employer.  Susan said it could be done, that PW3 could “purchase an employer” as soon as PW3 paid her $30,000.  PW3 understood that to mean she could have an employment contract and visa without having to work for or stay with the employer stated in the documents.  PW3 said that it was too expensive, that she had to think about it and would get back to Susan later.

59.  This, PW3 did.  She gave Susan a call, asking her to take care of it. After that call, she went to Susan’s office the Sunday following, bringing with her, on this occasion, her passport and photo.

60.  When PW3 met Susan, she asked Susan if she could pay half of $30,000 first, the balance to be paid after the visa was completed.  Susan agreed and gave PW3 a receipt for the $15,000 paid, which PW3 said she had since lost whilst she was back in Indonesia.

61.  PW3 said she was also asked on the same occasion to sign on an employment contract, ie P14A.  When asked, however, to look at P14, the visa application, PW3 said the signature there was not hers and she had not seen in fact the visa application before.  After all that was done, PW3 was told by Susan to wait in Macau for two weeks after her resignation with Ngan.

62.  PW3 did as told and went to Macau for two weeks.  In late August 2013, PW3 said the visa was ready and she asked a friend to collect it from Susan. With that visa, PW3 returned from Macau to Hong Kong.  Because she did not have enough money to pay Susan the remaining balance of $15,000, PW3 said she asked Susan to help and was told by Susan borrow that from a bank.  According to PW3, she did that with Susan’s help.  She went to a bank in Causeway Bay.  She said all that she had to do there was to tell the staff that she was sent by Susan, that she wanted to borrow money and Susan was the one introducing her.  She had the impression that Susan had made prior arrangements so that the staff there already knew what she was there for.

63.  PW3 said that she knew that the money was transferred directly to Susan’s bank account because: (1) a receipt was shown to her and she could see Susan’s Hong Kong name and account number on it; and (2) she had called Susan after this visit to the bank and was told by Susan that the money had been transferred.

64.  In around January 2014, before PW3 returned to Indonesia to deal with her own divorce, she said she went to the same agency and bid Susan farewell. Including this last trip, PW3 said she had met Susan a total of three times. They lasted between half to one hour; they were talking face-to-face with each other in Indonesian.  The place was always well lit and she could remember Susan’s look very well.  Susan, she said, had long hair, always heavily made up with, among others, fake eyelashes.  She is Indonesian, about 40 years old and she was, she said, tall.  As already mentioned, PW3 attended a photo ID parade on 23 May 2019 where she picked out a photo of the defendant, which she said was the person known as Susan or Mammy Susan and in court pointed out the defendant.

65.  Like PW1, PW3 was also charged with and convicted of, on her own plea, an offence of conspiracy to defraud on 10 April 2019 at the Shatin Magistracy. The particulars of the offence are likewise identical or very similar in any event to Charge 2, and PW3 was yet to be sentenced.

66.  Now, in cross-examination, Mr Allan followed basically the same pattern as he did with PW1.  The following matters about PW3’s statement to the Immigration Department were put to PW3:-

(a) In her statement, PW3 did not give the time or the date of her meetings with the defendant.

(b) Apart from saying that Susan was an Indonesian woman about 40 years old, no further particulars had been given by PW3 in her statement.

(c) PW3 mentioned in the statement that she had met the defendant twice, ie two times. No specific mention, it was said, of a third visit to be found in the statement.

(d) PW3 had not told the Immigration Department that the signatures on P14 were not hers.

67.  It was further suggested by the defence that what PW3 said about a bank loan is incredible, that she should still have a loan agreement if she had indeed got a loan from the bank.  It was said by the defence that the description she gave in court of the defendant as being tall is incommensurate with the defendant’s actual stature, which Mr Allan said could only be described as short.

68.  When asked by Mr Allan if the first time she went up to the defendant’s office was a Sunday or a Monday, PW3 said she believed it was a Sunday, but she did not appear to be very sure.  She said that it was a holiday, in any event[1].

69.  In fact, PW3 was prepared to accept that the events she was asked about happened a long time ago and her memory could therefore be a little confused. Be that as it may, she was very firm on her identification of the defendant as being Susan or Mammy Susan, and she was also sure that she had given the first $15,000 directly to Susan.

PW4

70.  I shall deal with the evidence of PW4 next.  PW4 was not called to testify because the parties had agreed to the reading of his statement into evidence under Section 65B of the Criminal Procedure Ordinance.  The statement was produced and marked as P76, with an edited version marked as P76A.  In a nutshell, PW4 said that he had neither seen nor signed on P14 and P14A.  In fact, he said he did not know PW3 at all.  He lived in a unit in Cheung On Estate in Tsing Yi, not the address shown in either of the two documents, which was a flat up at Oak Street in Tai Kok Tsui.  As for the copy of the HSBC bank passbook submitted together with P14, PW4 said it is not his as he did not even have an account with that bank.

PW5

71.  PW5 is also an Indonesian lady.  She is 31 years old.  She first came to Hong Kong in 2008 as a domestic helper.  Her employer then was a lady called Lily.  Now, between 2011 and 2013, she was working for an employer called Madam Chung.  In 2013, she changed to work for one, Lai Mee Ho and her contract with Lai was to expire in February 2016.  As PW5 had wanted to stay in Hong Kong with her boyfriend, Leo, for a few more months after the expiry of her contract with Lai, she said she was introduced to Susan in November 2015.

72.  Over the phone PW5 was told by Susan that in return for $40,000, she could make or give PW5 an employment contract and a visa without her having to work for the employer stated in the contract.  About a week after this phone call, PW5 went up to Susan’s office, J’S Employment in Yuen Long with her boyfriend.  There, she met Susan and was asked to sign on an employment contract, P35A, where she said the blanks were yet to be filled in.  She was told by Susan that her “employer” was a 50-year-old man.  Of course, she had never met this gentleman.

73.  During that same meeting, PW5 said she also gave the defendant her passport and a copy of her Hong Kong ID.  The meeting, she said, lasted for about one-and-a-half hours.  It was her boyfriend, Leo, who paid Susan $18,000.  Leo left early after staying for about half an hour.

74.  In around February 2016, that was about two weeks or so before her contract with Lai was to come to an end, she was told by Susan to go to Macau for a day and she used in fact Punti and saying the two words “出境” meaning “to depart” from Hong Kong.  PW5 did as told on 29 February 2016.

75.  When she was in Macau, she received a call from Susan telling her that she will be picked up by someone at the ferry pier there and given her entry visa.  PW5 went to the pier.  She was met by a woman who told her that she was sent by Susan.  With the visa she was given by this woman, PW5 returned to Hong Kong and in effect activated that visa.  About three to four days after PW5 returned from Macau, her boyfriend, Leo, as far as she was aware of, went to Susan’s office to pay her the remaining $22,000.  PW5 did not go along on this occasion.

76.  However, PW5 said that she had met Susan again on six to seven occasions after this as she went to the store cum restaurant called Chidi Jaya Shop, which belonged to the defendant and which was situated on the same floor as the defendant’s employment agency.  Initially, PW5 said the store was almost like opposite J’S Employment, but corrected herself later when cross-examined about it, that it was simply nearby.  PW5 said there were occasions when she and the defendant bumped into each other, either at the store or at the agency and there were also times when she and other Indonesians went to J’S Employment to consume the food they bought at the shop.

77.  PW5 said she knew the defendant’s full name, namely the one appearing on the charge sheet, because there was this occasion, which was amongst the six to seven times mentioned earlier, when she said she went to the defendant’s office with the food and saw on that occasion the defendant’s Hong Kong ID card lying on the table of the office.

78.  Like PW1 and PW3, PW5 also attended a photo ID parade, which took place on 22 May 2019.  She identified the defendant as the one she called Susan.  She added that the defendant had a mole on her cheek and she is a little taller than the defendant.  She had long hair at the time and was about 40 years old. PW5 said she believes the defendant was married to a Hong Kong man, but they always used Indonesian when speaking to each other.

79.  In cross-examination, PW5 was asked various questions, like what is the phone number she called to contact Susan, or what was it that she had said in her first call.  The main thrust, however, of Mr Allan’s cross-examination would seem to be that in PW5’s witness statement she gave the impression that she had been to the defendant’s office twice before she got her visa; not once, twice.  The words used in the statement is, and I quote, “After the first meeting, one week later I went to Yuen Long to meet Susan again.”  And there is no mention in the statement of she having made a phone call to the defendant first.

80.  Now, when asked to explain about this, PW5 said because it was a long time ago, it is difficult to remember everything.  Be that as it may, PW5 was adamant that as far as she could remember, she had only met the defendant once before she got her visa.  She accepted, under cross-examination, that whilst she had talked about paying the defendant in her statement, she did not say that it was her boyfriend, Leo, who made the payment.  Nor could any particulars in fact be found in her statement about the lighting condition, the seating arrangement, size of the room or, for that purpose, further particulars of Susan’s appearance, and that is apart from the description in the statement that Susan had long hair.  And there is, admittedly, also no mention in PW5’s witness statement that she had seen the defendant’s Hong Kong ID card lying on the table.

81.  When asked by Mr Allan where her boyfriend Leo is now, PW5 said she does not know because she has since married to another man and they (ie she and Leo) have not been in contact.  When it was put to her by Mr Allan that she had not mentioned in her statement also that she had seen Susan six to seven more times after she got her visa in February 2016, PW5 said that, whilst that is true, she had actually said in her statement that she could recognise Susan because she had seen Susan several times.  PW5 also maintained her position firmly when it was put by Mr Allan to her that the occasion she said she had seen the defendant’s Hong Kong ID card never existed.

82.  Lastly, PW5, like PW1 and PW3 had also been charged with, and convicted of on her own plea of the offence of conspiracy to defraud, the particulars of which are similar to Charge 4 herein and she is still waiting to be sentenced.

PW6

83.  Turning now to PW6.  PW6’s statement is also read into evidence without him having to testify in court.  The statement has since been marked as P77A. In short, PW6 said he had never hired PW5 and he had never seen or signed P35 or P35A.  The address appearing in these documents, namely Ha Kwai Chung Village was not his address.  He was, at all material times, living in Shek Wai Kok Village.  The water bill, which was submitted to the Immigration Department with the application, in fact also had the wrong address and was therefore not his.  As for the BOC bank passbook, PW6’s case is that whilst he had that account with the bank, the entries there were not correct.  He never had the sort of money appearing there.

PW7

84.  PW7 is a Filipino lady born in 1970.  She first came to Hong Kong as a domestic helper in 1999.  Her last employer was one, Lai Sek Yan, Juliana with whom she had a contract, which had in fact expired in February 2015.  She was having difficulty at the time in getting a new employer.  She was introduced to Susan, whom she said ran an employment agency in Yuen Long.  She went there one afternoon in around February 2015 and met Susan there.  They spoke for about half an hour.  Susan told her that she could take care of everything regarding her employment contract.  PW7 said she was not expected to work for or live with the employer.  All that PW7 had to do was to give Susan her passport, a photo and pay her, meaning pay Susan, HK$30,000.

85.  After agreeing to it, PW7 was asked by the defendant to sign on the visa application and the contract, namely P44 and P44A, which at that time was still roughly left blank.  PW7 then paid Susan $10,000 first, the remaining balance she said she eventually paid by depositing these into Susan’s account.  According to the best of her recollection, she said the first payment was in the sum of $2,500 and then followed by another deposit of $3,000 and so on and so forth. When PW7’s visa was ready, Susan rang her up and asked her to meet with a female colleague of hers.  PW7 said she then paid this woman the outstanding balance of $10,000 in cash.

86.  A few weeks after that, PW7 said she saw Susan again.  That was before 25 July 2015 when she went to India.  PW7 said she went to Susan’s office to ask her to help with a supporting letter for her to go to India.  On this occasion, they met for about 20 minutes.  In fact, on each occasion, PW7 said she and Susan were speaking in English.

87.  On 17 May 2019, she attended a photo ID parade and picked out the defendant’s picture as the person she has been calling “Susan”, and in court, she identified the defendant again.  In fact, she also produced in court a business card which she said was given to her by Susan, or the card she said had the name Susan Wong, the agency name and address on it.  Since neither the prosecution nor the defence have asked for this card to be formally produced, it was simply left there.

88.  Now, for her part of the dealings with the Immigration Department, PW7 was likewise charged with and on her plea convicted of an offence of conspiracy to defraud in April 2019.  The charge she is convicted of is in effect a mirror charge of Charge 6 herein.

89.  In cross-examination, the main line of attack taken by Mr Allan related to the payment PW7 said she had made after the first and before the last $10,000.  PW7 clearly had some difficulty in remembering the details of these payments and how they actually added up to the total of $30,000, which she said she had paid the defendant.  Also, like the way the other three witnesses had been dealt with, Mr Allan referred to the witness statement given by PW7 and put to her that there is no mention in it of a number of matters, including (a) the fact that she went in the afternoon for the meeting she had with the defendant; (b) that she was face-to-face with the defendant when they were talking; (c) that the meeting that they lasted for about half an hour; (d) the lighting condition of the defendant’s office; (e) the defendant’s age or build, and (f) that the defendant spoke English.

90.  It was also put to PW7 by Mr Allan that in her statement, instead of meeting the defendant only once, PW7 said there that she had a second meeting with the defendant and it was in that second meeting that she gave the defendant her passport.  PW7 said in reply that she could not be sure about that.  But since she had told the Immigration Department the truth, then that, meaning the version in the statement, should be the more correct version.

91.  Mr Allan next referred PW7 to the Brief Facts which was read out to and admitted by PW7 at the Shatin Magistracy when she, herself, appeared as a defendant.  It was said by Mr Allan that PW7 admitted that she and the defendant had met a total of three times and that it was on the first occasion that they got acquainted with each other.

92.  It was put by Mr Allan that the following is said in the Brief Facts about the second meeting, and I quote:  “A few days after inquiring A1” - meaning Susan - “defendant attended the agency again, the second time, when defendant paid $15,000 to A1.”  To this, PW7 maintained that she had only given the defendant $10,000, not $15,000 on the first occasion they met.

93.  Mr Allan then put to PW7 another part of the Brief Facts which he says relates to the third meeting, and I quote:  “In about February 2015, defendant was informed by A1, ie Susan, that the visa was ready for collection. Defendant then attended the agency and paid another $15,000 to A1.”  PW7’s answer to this is that she did not agree with that.  She said she cannot recall ever giving the defendant directly a sum of $15,000.  However, it soon became clear that the passages in the Brief Facts which Mr Allan referred to, were all things which PW7 was said to have told the immigration officer under caution. In other words, they were extracts from the cautioned statement of PW7.

94.  Of course, these things still constitute a version which is different from the evidence PW7 has given in court.  But being part of a cautioned statement, what PW7 said there may or may not in fact be correct.  Therefore, in admitting, after the Brief Facts were read to her at Shatin Magistracy, that these were what she had said in her cautioned statement, she is not necessarily admitting to the truth of the contents of the cautioned statement.

95.  After this, it was put to PW7 by Mr Allan that she had made a mistake in her identification.  It was, and I quote, said by Mr Allan that “the person she had identified is not Susan”.  PW7 disagreed.  She is adamant that she has not made any mistake as to that; that the defendant, she said, was the person she had spoken to.

96.  Lastly, it was put to PW7 by Mr Allan under cross-examination that she could not be telling the truth when she said she remembered getting a call from the defendant’s mobile on the basis that according to Exhibit D1, ie the defendant’s movement record, she is out of Hong Kong from 10 February to 7 March 2015.  PW7 disagreed with that and maintained that it was the defendant whom she had spoken to over the phone on that occasion.

97.  In this connection, let me say this at this point, although I will be returning to it later.  When testifying in court PW7 made it clear that she was not sure about the dates.  When talking about the first time she saw the defendant, PW7 said in evidence that it was in around February.  She only agreed that she got the call at the end of February 2015, when it was suggested to her by Mr Allan that was what she had said in her statement.  To that extent, whether the call was indeed made to her at the end of February 2015, a time when the defendant was apparently not in Hong Kong, is therefore far from conclusive.  Also since the defendant called PW7 with her mobile phone, PW7 may not really know where the defendant was calling from.  After all, the same number, or for that purpose the caller’s name, would have appeared on PW7’s phone when it rang.

PW8

98.  PW8’s statement is likewise read into evidence under section 75B of the Criminal Procedure Ordinance without him having to come to testify.  The relevant part of PW8’s evidence can be summarised in a few words: (a) he has never seen nor signed P44 or P44A; (b) the address on both of these documents were his, but he had never hired PW7, or for that purpose, ever made any such application to the Immigration Department; (c) an electricity bill forming part of the supporting documents for the visa application was not his as the account with the electricity company was not held in his name; (d) as to the copy passbook with Wing Hang Bank, PW8’s evidence is that it is not his also. Although he did have an account with that bank, he did not have the kind of money appearing in the copy passbook.

J’S Employment Agency’s Address on Documents Submitted to Immigration

99.  That is about all the evidence for Charges 1, 2, 4 and 6.  There are two other matters, which I should however add, both relating to documents referred to and produced as part of the Admitted Facts.  The first one is that if one were to look at the visa applications, the part to be completed by the employers and some of the documents kept by the Immigration Department for the matter under Charges 2, 4 and 6, namely P14, P15, P35 and P44, one could see that the address of J’S Employment Agency in Tung Yick Building was put down there as the correspondence address.

100.  Of equal, if not greater, importance, is that the defendant’s name and ID card number could be seen in Exhibit P14 and the relevant part could be found on page 211 of the trial bundle and P15, at page 235.  The former is an acknowledgement of receipt of PW3’s employment contract, namely P14A, purportedly given by the defendant to the Immigration Department on 19 August 2013.  The latter is a document with two parts.  At the top is a letter of authorisation by which the defendant was purportedly authorised by PW4 to collect PW3’s entry visa label; the lower-half is an acknowledgement of receipt of the said visa label purportedly given by the defendant to the Immigration Department.

Copies of Bank Passbooks Found in J’S Employment Agency

101.  The second matter I should add relates to some of the documents found at J’S Employment Agency by the Immigration Department on 18 March 2018.  This included, among others, P11, bank passbook with PW2’s name, but which he said was not his.  It is in fact a mirror copy of the passbook attached to P4 at page 66 and 74.  P20 and 21 are mirrors copies of P14 at page 176 and 182. These are copies of the bank passbook purported to be PW4’s, but which he said was not his.  And lastly, P50 and P51, likewise are mirror copies of P44 at pages 512, 515, 517 and 519.  These are bills and bank passbook which PW8 said were not his.

PW15

102.  Turning next to the evidence of PW15 to PW18, which are relevant of course only to Charges 7 to 11.  Although these witnesses have come to court to testify, there is really no dispute of the evidence they had given by the defence.  PW15, Cheung Shuk Wa, also called Beryl by her friends, is a young lady born in 1992.  She is a bakery teacher by occupation.  In around the end of 2016, her mother was sick; PW15 therefore wanted to have an overseas domestic helper.  On the introduction of her aunt, PW15 went to see Susan at her office in Tung Yick Plaza in Yuen Long.  They met for about 15 to 20 minutes, face-to-face.  Susan was, she said, about 30 to 40 years old.  Fairly heavy make-up, she said, and was believed by her to be Indonesian by nationality, but Susan was using Cantonese in their conversation.

103.  Apparently, they had a video conference with some of the domestic helpers on Susan’s book, so that PW15 could look at the maids available.  On this occasion, PW15 picked a lady called Yanti.  PW15 was then told by Susan to prepare the papers.  PW15 met Susan for a second time when she went up to Susan’s agency to sign the employment contract and pay the agency fee, which she said was something between $9,000 to $10,000.  Amongst the documents which PW15 said she was asked to give Susan in 2016 was a copy of a Chong Hing Bank passbook belonging to her mother, Madam Wong Ching-yee, with the account number of 041286206035253. This was produced as Exhibit P53 and could be seen on pages 634 to 647 of the bundle.  Obviously, this passbook was required as proof of the employer’s financial standing.  PW15 said she had to give Susan her mother’s passbook because she, meaning PW15 herself, did not have one.

104.  Having given Susan a copy of her mother’s passbook, PW15 was told by Susan that she had to make a few more deposits into the account.  She did as told and sent the updated entries to Susan by WhatsApp.  By looking at P53 at page 638 of the bundle, one could see that a deposit of $2,000 was made into the account on 16 December 2016 and then a few smaller deposits followed.  Apart from that, PW15 said she had to sign on the application form, which is P52, page 570, where her signature could be seen on page 578 and 582.  PW15 had also signed on an employment contract, which copy has been produced also as part of P52 at pages 576 to 579.

105.  That is all PW15 had to do.  Having signed on the forms and the contract and having given Susan the copy of the bank passbook of her mother and the fees, the application was then entrusted by PW15 to Susan.  According to paragraphs 14 and 15 of P74, ie the Admitted Facts, documents making up PW15’s application for entry visa for domestic helper, Yanti, was received by the Immigration Department. In the belief that the information provided therein was correct, the application was approved.

106.  The next time PW15 saw Susan was after Yanti had arrived in Hong Kong. PW15 was told to go to Tuen Mun Town Centre to pick Yanti up and on that occasion Susan was also there.  PW15 added that in fact she had seen Susan again in 2018 when she went to Susan’s office to try to get Yanti’s passbook back as Yanti would need to travel herself.

107.  Now, coming back to the documents included under P52 on pages 584 to 593, there is a copy of a Chong Hing Bank passbook with the same account number, namely 041286206035253 and the name Wong Ching-yee on it.  But the entries under the column for balance are very different from what one can see on page 53.  In short, each entry thereon is $300,000 larger than their counterpart in P53.  The difference becomes even larger when it comes to pages 589 to 592.  It is clear that someone had done something to the copy PW15 gave to Susan to make the bank balances in P52 much larger than what they really are, as can be seen in P53.  But of course all that PW15 could say is that she did not know about the change or the alteration.  She did not do it herself and does not know exactly who did it.

108.  The only thing taken up by Mr Allan in cross-examination is a letter dated 28 March 2018, which bears PW15’s signature.  The letter was addressed to the Immigration Department saying that, and I quote, “As she wishes to depart from Hong Kong, together with Yanti, she would like to obtain Yanti’s passport and employment contract back from the Immigration Department.”  The letter is produced as Exhibit D2.

109.  PW15 said in answer that this was actually not written by her and she did not actually leave Hong Kong with Yanti, subsequently.  She said she signed the letter nevertheless so that Yanti could have her passport and contract back.  Although it is not made very clear by Mr Allan whether this is the fourth or last occasion when PW15 saw Susan, it became clear in re-examination that that must be the case.  And it became also quite clear that Exhibit D2 was in fact given to PW15 by Susan to sign.

110.  In any event, it is admitted by the parties that PW15 attended a photo ID parade that took place on 8 April 2019 and she picked the defendant’s picture out.  PW15 of course also pointed the defendant out in court when asked by the prosecution if she could still recognise Susan. 

PW16

111.  PW16 was the next witness called.  He is a driver by occupation.  In September or October 2016, as his wife became pregnant, PW16 felt that they would need a domestic helper, and on the instruction of his mother, he went to Susan Wong’s J’S Employment Agency in Hop Yick Plaza or Centre in Yuen Long. At the meeting he had with Susan in her office, he picked a helper called Santi by looking at a photo album.  He was told by Susan that he would need to provide her with some documents, like proof of his salary and bank proof.  This first meeting he said lasted for about half an hour and he had a very good look at Susan.

112.  After the meeting, PW16 said he went back to his office and got, among other things, his BOC passbook in his name and with the account number 01256910111041, and he returned to Susan’s office, where they met again.  In this second meeting, which lasted also for about half an hour, PW16 said he gave his passbook to Susan for her to make a photocopy.  And after that, the passbook was returned to him.  This bank passbook of PW16 was produced as P56. According to PW16, the passbook has been kept in his own custody all along after it was returned to him by Susan.  PW16 also paid the fees of a little over $10,000 to Susan on that occasion.  He left after signing the application form and the employment contract, which formed part of Exhibit P54 in court.

113.  PW16 described Susan as an Indonesian or Southeast Asian lady.  Susan, he said, was not tall; had curly hair and was in her late 30s or early 40s.  He said they were using Punti in their conversation.

114.  In about February 2017, PW16 said he got a call from Susan telling him that Santi, the helper he picked earlier, could not come to Hong Kong and therefore he was asked to sign another contract, meaning he had to pick a new helper.  This he did as told.  When he met Susan again, he was asked to sign on a new application form and a new employment contract, which formed part of P55. As far as he could recall, he did not provide further documents of support on this occasion.  And after that was done, the application for the immigration visa was entrusted by him to Susan.

115.  The next thing which happened was that he was told in around May 2017 that he could go and pick his new helper up.  The new helper was called Wasri. And when PW16 went to Susan’s agency to do that, Susan was there.  The meeting lasted for about a quarter of an hour.

116.  Now, in both the first and the second application made in PW16’s name, ie P54 at pages 670 to 677 and P55 at pages 756 to 762, there is a copy of a BOC passbook in PW16’s name and with his bank account number.  However, the entries for the bank balance appearing in both of these, ie P54 and P55, are very much larger than what appeared in P56.  One could see the difference if one looks at the entries on pages 672 and 674, and then compare these with the entries on page 827 and 828.  The difference, as one can see, is one of $300,000.  When asked, PW16 said he did not know what happened to the photocopy Susan made of P56, and he could not tell why there were these differences.

117.  Like PW15, PW16 also attended a photo ID parade.  This photo ID parade was conducted on 11 April 2019 and he picked Susan’s picture, photo number 3, as the person whom he had been dealing with in relation to the visa application for the domestic helper.  And in court he pointed the defendant out.

PW17

118.  PW17’s experience is almost identical to that of PW15 and PW16. According to her, she went to an employment agency in Hop Yick Plaza, Yuen Long, in July 2017.  There she met with a Mrs Wong.  After learning from PW17 her requirement, Mrs Wong told her that she had a helper who was at the end of her contract.  Later, a staff of Mrs Wong brought the helper, who was called Susiani, to the restaurant where PW17 was working so that she could look at this helper.  After PW17 agreed to hire Susiani, she went up to Mrs Wong’s agency again in either July or August, to sign the contract and pay the fees. When she was asked to look at the documents which formed P57, PW17 confirmed that the contract dated 20 July 2017, which one could see on pages 848 to 855, is the contract she had signed with Susiani and she also identified the application for visa for domestic helper, which also bears her signature.

119.  On the same occasion when she signed these documents, PW17 gave Mrs Wong also what she described as a printout of her income from her bank, namely BOC. She was asked to have this by Mrs Wong over the phone before the second meeting.  PW17 said she understood that in order to be able to hire an overseas domestic helper, the employer should have a deposit of at least $360,000 or a monthly income of $17,000 or above over a period of three months or more.

120.  After paying Mrs Wong the fees and giving her the printout, the rest of the application, PW17 said, was entrusted by her to Mrs Wong.  And of course, it is not in dispute that an application in the name of PW17 for hiring Susiani, together with the other supporting documents in P57, was received by the Immigration Department on 5 September 2017 and was eventually approved in the belief that the information provided to the Department was true and accurate.

121.  Now, in Exhibit P57, there is a BOC fixed deposit confirmation dated 1 September 2017, which one can see on pages 856 to 859 of the bundle.  The document has PW17’s name on it and shows that she had a time deposit of $360,000 to be held with the Bank for six months, that is up to 1 March 2018. When PW17 was asked to look at this document, she said it was not hers.  She does not have an account of the account number shown in the confirmation.  In fact, she does not have any fixed deposit with the Bank of China.  And certainly, it is not the printout she had given Mrs Wong.

122.  In any event, Susiani, the helper, arrived in Hong Kong using the visa granted.  As PW17 was happy with her service, she actually went back to Susan’s agency afterwards and brought her some buns as a token of gratitude.  Including this last time they met, PW17 had a total of three meetings with Mrs Wong and on each occasion, according to her description, she had very good opportunity to look at the defendant’s appearance and face.

123.  On 9 April 2019, PW17 attended the photo ID parade I mentioned earlier and picked out the defendant’s picture, and in court she pointed the defendant out also.

124.  In cross-examination, apart from confirming with PW17 that at the time she had her dealings with the defendant, everything appeared to her to be proper and above board.  The only other thing brought up by Mr Allan is that PW17 had been sentenced to the Drug Addiction Treatment Centre after she breached a probation order in 1996.

125.  Now, given that she was still very young at the time and it took place such a long time ago, it is difficult for the court to see really what relevance that has with the matter now the court has to consider, and that is particularly so when the defence has not sought to impeach PW17’s credibility or reliability in any way.

PW18

126.  I come to deal with the last witness, PW18, Yu Man Kwan.  Now, PW18’s experience is very similar to PW15 to PW17.  She is a clerk by occupation. She was born in 1997.  Because of her mother’s illness, she decided to hire a domestic helper in around July 2017.  At that time, a friend of hers gave her a name card of an employment agency with the name Susan Wong on it.  And on that card there was also Susan Wong’s number and the name of the agency.  PW18 called the number and asked for help.  She was told over the phone that she had to prepare some information which included proof of her address and identity, and so on.

127.  PW18 said because she did not have the necessary proof for a $15,000/month income, which I understand to mean that she was earning less than $15,000 per month, she was asked by Susan to provide her with her bank account passbook.  After that call, PW18 met with Susan at her office in Tung Yick Plaza one afternoon. In this meeting, PW18 asked about procedure and provided Susan with the documents she was asked for, one of these being her BOC account passbook number -- account number 01260710191558, which she said was given to Susan for photocopying and then returned to her.  This passbook of PW18 has been produced in court and marked as P61.

128.  PW18 also paid Susan agency fee of about $9,000. She signed on the visa application form, which could be found at page 898 of the bundle, and the employment contract with a helper called Siana, which could be found at pages 904 to 910.  The meeting she said lasted for about an hour.

129.  Now, both of these documents which she had signed, including what appears to be a copy of her bank passbook, have been submitted to the Immigration Department on 22 November 2017 and has been produced in this trial as Exhibit P59.  After receiving the application and in the belief that the information provided therein was true and accurate, PW18’s application for a visa for domestic helper was approved.

130.  PW18 met Susan at her office a second time in or around December 2017, (she in fact made a mistake initially when she said this was in August), when she gave Susan an updated electricity bill.  She also gave the same passbook, but with some updates, to Susan which Susan also made a photocopy of.  In Exhibit P61, one could see on page 994 of the bundle, a $100 deposit which was made on 2 December 2017.  This deposit, according to PW18, was the updating she did with the passbook.  And this second meeting she said took about half an hour to finish.

131.  In the documents received by the Immigration Department, that is P59, there is a copy of a BOC bank passbook with PW18’s name and account number on it. However, the bank balance shown on each page are larger than what PW18 really had, as shown in Exhibit P61.  For instance, the entry for 17 September 2017, in P59 at page 918, is $50,000 larger than the entry one could find for that date in PW18’s bank passbook, P61 at page 994.

132.  A little like PW17, in fact PW18 said that, to her understanding in order to be eligible for hiring a domestic helper, an employer had to show to the Immigration Department that he either had a monthly income of $15,000 or a bank deposit of $360,000.

133.  The third and last time PW18 met Susan was when she was picking up the helper, Siana.  Susan was also there and they spent about a quarter of an hour together on that occasion.

134.  PW18 attended a photo ID parade on 12 April 2019.  She picked out the defendant’s photo as Susan Wong, and in court she pointed the defendant out as the person whom she had been dealing with at the agency.

135.  The only point taken by Mr Allan in his cross-examination of PW18 appears to establish that after the defendant made the photocopy of P61, PW18 did not know what had happened to the copy.  PW18 accepted that.  She also accepted that she did not know why there was the difference.  She accepted, when asked by Mr Allan, that she did not think at the time that there was any suspicion.  However, when it was put by Mr Allan to her that she did not see anyone doing the change of the contents of the photocopy passbook, PW18 said, and I quote, “Right.  But I could have guessed.”

136.  One last thing to add before I shall turn to the court’s assessment of the above evidence.  Among the things found by the Immigration Department in the defendant’s office were (a) P58 which is an identical copy of P57, namely the BOC deposit confirmation said to be false; and (b) P60, which is a combination of P59, ie the BOC passbook in the name of PW18 submitted to the Immigration Department, and P61, ie PW18’s own passbook with the same account number.

137.  After the prosecution closed its case, and notwithstanding a half-time submission by Mr Allan in respect of Charges 7 to 11, (made on the basis that there was no evidence to suggest that the defendant had used the false instrument in question), the defendant was found to have a case to answer on all charges.

138.  The defendant, after taking advice from Mr Allan, elected to remain silent, which is of course perfectly within her rights.

Assessment of evidence

139.  As can be seen from what I have set out above, the only witnesses whose credibility and reliability are in issue are PW1, PW3, PW5 and PW7.  No issue is taken with PW2, PW4, PW6 and PW8.  In fact, the evidence of these witnesses are admitted into evidence under section 65B of the Criminal Procedure Ordinance.  Although PW2 was called, his evidence was not in any way challenged.  His oral evidence is in effect more for background.

140.  The same applies to PW15 to PW18.  Even though they were called to testify, the only criticisms raised in cross-examination are: (a) as against PW15, that she may not be entirely trustworthy in light of the letter, ie Exhibit D2, which she had signed, given that she never intended actually to leave Hong Kong with the helper; and (b) as against PW17, that she had a past conviction in 1996.  Now, in my view, neither of these matters have any relevance at all to the present assessment.  They do not in any way reflect on the two witnesses’ credibility or reliability.

141.  On that basis, and having looked at the evidence in its entirety, I am satisfied that PW2, PW4, PW6, PW8, PW15 to PW18 are honest, credible and reliable witnesses.

142.  I turn now to the evidence of PW1, PW3, PW5 and PW7.  Let me start here by saying that I have warned myself, in view of the fact that these witnesses are all in fact named accomplices for the offence of conspiracy to defraud, that the court has to assess their evidence with caution.

143.  Now, as I have mentioned when reciting the evidence of these four witnesses, there are common features in the cross-examination taken by the defence.  The first one being the differences between what was said in their statements and the oral testimony they gave in court.  This included, and I intend to name only one or two as examples, the number of times the PWs had met with the defendant; the date, or month, or year of these meetings; the time of the day when the meetings took place; or for that purpose the number of payments made, and the sum for each, by the PWs to the defendant.

144.  The second common feature is the lack of details in the PWs’ statements.  This included time and date of the meeting; the details, or lack of it, of the defendant’s physical appearance; whether the signatures on the visa application forms were put there by the PWs or not; and by whom or how each payment was made by the respective PW to the defendant.

145.  The third feature is what I would call inherent incredibility.  To use PW3’s case as an example, it is the defendant’s suggestion that if PW3 had indeed taken out a loan in order to pay the defendant the balance of $15,000, she should have been able to produce the loan agreement.  And likewise, if the PWs had indeed been given a receipt by the defendant, they should have kept the receipt and have it produced, instead of losing at some point of time.

146.  There are of course other points which the defence has made either in cross-examination or in their final submission.  I do not think, however, that it is necessary for me to repeat them all here.  Suffice for me to say that, having considered all the points made by the defence very carefully, I concluded that they do not in any way impinge upon the credibility of any of the four witnesses in question.  I found them all to be credible witnesses.

147.  Given the lapse of time since the date of the offence, differences of the sort which we have seen are only to be expected.  As can be seen from the evidence of PW15 to PW18, whose credibility and reliability are not in issue, they were having difficulty in remembering some of the details about the meetings they had with the defendant.

148.  As to the lack of details in the witness statements, all that I will say is that there is really no substance in the criticism.  How much detail is to be included in a witness statement is a matter more for the statement taker. If the statement taker had asked for them, I would not be surprised if more details would have been included.

149.  The same applies, in my view, to the points taken about a witness not being able to produce a particular receipt or the loan agreement.  One must remember that the payments took place quite some years ago and as the deal had been completed, and the payment settled, I cannot see why the witness must hang on to them in the long years in between.  And that is particularly so when one is talking about overseas domestic helper, who normally have a very limited amount of space for their living quarters in Hong Kong. That bits of paper like that would get lost very easily in the course of time is, I would have thought, nothing less than common experience for all of us.

150.  All in all, none of the points taken by the defence in either the cross-examination or the final submission have caused me to doubt the honesty or truthfulness of any of these four witnesses.

151.  In the case of PW3, PW5 and PW7, I have also come to the conclusion that their evidence is wholly reliable, and that includes the identification made by them, both at the ID parade and in court.  Having reminded myself of the Turnbull features set out in Archbold Hong Kong (2020), paragraph 14-2, I am satisfied that the quality of identification each made is excellent and can be relied on.  Although in law no corroboration is needed, my view on the reliability of the identification made by these witnesses is reinforced by the fact that every PW who had dealing with the defendant identified her as either Susan, or Susan Wong, or Mrs Wong, of J’S Employment Agency in Tung Yick Plaza or Building.

152.  As for PW1, however, bearing in mind the confusion in her evidence about when it was that she first saw the defendant (was it in 2013 or was it in 2015), there is a lurking doubt in my mind as to whether she could have been mistaken on this after all.  Given that there were, on her evidence, two different occasions when she had entered into an agreement with the defendant on the making of an application to the Immigration, it would not, in my view, be safe for the court to rely on her evidence as proof of Charge 1, even though she was a honest witness.

153.  As to the defendant, she has chosen not to testify, as is, of course as I have said earlier, her right.  All that I will say is that no adverse inference of any kind is to be drawn against her for that.  That apart, being a lady of clear record, I have also reminded myself that she is less likely to commit an offence than on average.

154.  Now, let me say a quick word also on the issues taken by Mr Allan as to both the photo ID and the identification made by the witnesses in court.  In Mr Allan’s submission, following the defendant’s repeated refusal to take part in a formal ID parade, the immigration officer should have conducted a face-to-face confrontation by the witness rather than a photo ID parade in which the witness was asked to look at, and I quote from Mr Allan’s submission, “mug shots which shows the suspect in the worst possible light”.  I disagree.

155.  To start with, this court is not aware of any rule, or practice, or direction saying that the investigation officer should have conducted a face-to-face confrontation should the arrested person refuse to take part in a formal ID parade.  The passage quoted by Mr Allan does not support that proposition at all.  In my view, that would be much less favourable to the defendant here when compared to the photo ID parades which we have seen.  And I pause here to add that it is in fact an admitted fact that the photo ID parades were all properly and fairly held.

156.  Turning to the photo ID parade.  Insofar as the quality of the photos included in the album is concerned, I do not think they show the suspect in the worst possible light as suggested by Mr Allan.  Apart from being black and white, and maybe a little sombre to look at, the photos in the album, including that of the defendant, looks no different from what a passport photo would otherwise look like.  The feeling I had is that most of us would have appeared like that in our Hong Kong ID cards as well.

157.  As to Mr Allan’s repeated objections to the PWs being asked if he or she could recognise Susan in court, and if so, point her out, I simply do not see any ground for Mr Allan’s objection at all.  Bearing in mind that in the case of each of these PWs, there is a previous identification made by him or her of the defendant in the photo ID parade, there is, in my view, nothing wrong in him or her being asked if he or she could still recognise the person he or she had picked out in the ID parade, and if so, and if that person is in court, point her out: paragraph 14-20 of Archbold Hong Kong (2020).  That is not, in my view, what one would normally call a “dock ID”, for the prosecution witness in question is not being asked to make an ID for the first time in court.  If anything, the ID made by the PWs here is akin to a case of true recognition.  They recognised the defendant after meetings, and in some cases, long meetings they had with her.

Charges proved

158.  When looking at the evidence which I have accepted, I remind myself of the burden and standard of proof in a criminal case; I also remind myself that each charge has to be considered separately.  In respect of Charge 1, given that I have doubts as to whether PW1 could have been mistaken as to the occasion she actually met the defendant, there must be a reasonable doubt in the prosecution’s case and the benefit of that obviously goes to the defendant.

159.  As to Charges 2, 4 and 6, it is admitted that a visa application was made to the Director of Immigration in each case for the helper, namely PW3, PW5 and PW7 respectively, to enter and remain in Hong Kong as a foreign domestic helper for PW4, PW6 and PW8 respectively.

160.  On the evidence of PW3 to PW8, there can be no dispute that in each case (a) a false and dishonest representation was made to the Director that the helper, namely PW3, PW5 and PW7, were employed by the employers stated in the application, ie PW4, PW6 and PW8, respectively; (b) with the intention to induce the Director to approve the helper’s entry, employment visa, which they would not otherwise have approved; and (c) in so approving, they would have been acting contrary to their public duty.

161.  The only question left is whether PW3, PW5 and PW7 had agreed with anyone for the making of the application, which included the dishonest and false representation to the Director, and if so, who that was.  Having accepted the evidence of PW3, PW5 and PW7 and having examined their ID evidence in particular with care, there can only be one answer to that. And that is that each of these witnesses had entered into an agreement with the defendant to defraud the Director of Immigration and his officers by dishonestly and falsely making the representation named in the charge.

162.  My view is reinforced by the fact that the defendant’s name and ID card number appears in the acknowledgement of receipt, P14 at page 211, and a letter of authorisation cum acknowledgement of receipt, P15 at page 231. 

163.  There may or may not be in fact an unknown person.  In the case of Charge 2, there does not seem to anyone else who was involved in the agreement, except perhaps the staff at the bank.  In the case of Charge 4, there was a woman who picked up PW5 at the Macau Ferry Pier. She may or may not be a knowing party to the agreement.  As to Charge 6, PW7 got her visa from, and paid the balance of payment to, a female colleague of the defendant.  But then again, she may or may not be a knowing party to the agreement.  However, it matters not as in each case an agreement had been entered into by two persons, namely the defendant and the respective PW, and that is all that is required by law.

164.  The last thing I think I should add insofar as these four charges are concerned is that when called upon by me to explain why the provisions in the Criminal Jurisdiction Ordinance are relevant, Miss Sujanani confirmed that in light of the evidence brought out in court, there is no longer a need for the court to be bothered with that. 

165.  Moving to the case for Charges 7-11. Now, the first point I should address here is that under section 69(a) of the Crimes Ordinance, an instrument is false only if it falls within one of the paragraphs, namely (i) to (viii) thereunder.  On being asked by me, I was told by the prosecution that the prosecution’s case is that the instrument falls within paragraph (vii), namely, that it was made in circumstances in which it was not in fact made.  As stated in paragraph 7 of Miss Sujanani’s written submissions, the prosecution’s case is that the pre-existed set of circumstances of the banking documents in issue is that on the transaction dates as described in the bank statements, the account holders, being the PWs, should have in their bank accounts the amount of money so printed. 

166.  As I have indicated in court, I have no difficulty with that when dealing with Charges 8 to 11. In respect of Charge 7, however, the prosecution’s contention as stated above may not work. For the account holder was not PW15, but her mother, Madam Wong Ching Yee.  Since Madam Wong had not been called, the court cannot simply rely on the contents in Exhibit P53 to see whether she had the amount of money printed thereon as that would be in breach of the rule against hearsay.

167.  Be that as it may, there is, in my view, a different set of circumstances which must also have existed and without which the instrument would have been false.  In my opinion, what is also required is that the instrument must be a true photocopy of a genuine Chong Hing passbook in the name Wong Ching Yee.  If the instrument is a product of a cut and paste exercise, or the product of a cunning manipulation on a computer, as opposed to a straightforward and true copy of Madam Wong’s Chong Hing passbook, then it is clearly an instrument made in circumstances in which it was not in fact made.

168.  That said, let me now turn back to the evidence of the charges.  Based on the Admitted Facts and what I have just said about the statutory definition, it is abundantly clear that the instruments referred to in the five charges, instruments which were submitted to the Immigration Department with the visa application on behalf of PW15 to PW18, are false within the meaning of the term under section 69(a)(vii) of the Crimes Ordinance.  It is also clear in my view that whoever submitting these would have had the requisite double intention in the circumstances, namely intention to: (a) induce the officers of the Immigration Department to accept it as genuine; and (b) by reason of so accepting it to do or not to do some act to their own or any other person’s prejudice.

169.  Also, as stated in the Admitted Facts for each of the charges, the Immigration Department approved a visa in the belief that the information provided to it or with the application were true and accurate. 

170.  I do not think it can possibly be disputed in this case that whoever, using the instrument in question, meaning submitting them to the Immigration Department, must have known or believed them to be false.  The only real question left therefore, as Mr Allan has accepted, is whether on the evidence the court can be satisfied so that it is sure that it was the defendant who used the instruments.

171.  Now, it is true that there is no direct evidence on what had been done to the photocopies made by the defendant of the original passbook, or, for that purpose, the printout given to her by PW17.  There is also no direct evidence on who made the changes or the swapping.  But in my view, this matters not. What is clear is that after the original (and genuine) passbooks were given to the defendant by PW15, PW16 and PW18 for photocopying, and in the case of Charge 10, after the printout was given to the defendant to keep by PW17, an instrument which appeared to be a copy of these passbooks, (in PW15’s case her mother’s passbook, and in PW17’s case, a copy of a deposit confirmation in her name), were included as supporting documents for the visa application made on behalf of PW15 to PW18. 

172.  It is noteworthy also that on each of the visa applications, namely P52, P54, P55 and P59, the address of J’S Employment Agency, of which the defendant was the sole director, was put down as the correspondence address. 

173.  Taking into account the above matters and the circumstances as described by PW15 to PW18 in relation to the making of the applications to the Immigration Department, and in the absence of evidence to the contrary, I am satisfied that the only reasonable inference to be drawn is that the false instruments were used by the defendant in the visa applications submitted to the Immigration Department on behalf of each of these witnesses.

174.  On the basis of what I have said, the court is satisfied beyond a reasonable doubt that the defendant has committed the offences under Charges 2, 4, 6 to 11, and she is accordingly convicted of these charges.  And by reason of what I have said, the defendant is found not guilty of Charge 1.