DCCC1167/2011 HKSAR v. MENDOZA ZENAIDA TABILOG AND ANOTHER - LawHero
DCCC1167/2011
HKSAR v. MENDOZA ZENAIDA TABILOG AND ANOTHER
區域法院（刑事）H H Judge S. D’Almada Remedios17/5/2012
DCCC1167/2011
A A
DCCC1167/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1167 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Mendoza Zenaida Tabilog (D1)
F Romero Jay Nalyn Uy (D2) F
G G
----------------------
H Before: H H Judge S. D’Almada Remedios H
Date: 18 May 2012 at 3.10 pm
Present: Ms Winsome Chan, SPP of the Department of Justice, for
I HKSAR I
Ms Ody Lai, instructed by Wong & Co., for the
J 1st Defendant J
Mr James Collins, instructed by Yaddy Cheung & Co.,
assigned by the Director of Legal Aid, for the
K 2nd Defendant K
Offence: (1) Breach of condition of stay (違反逗留條件)
L
(2) Aiding, abetting, counselling or procuring breach L
of condition of stay by another person (協助及教唆他
人違反逗留條件)
M (3) Conspiracy to defraud (串謀詐騙) M
(4) Conspiracy to make or cause to be made false
N statements or representations to immigration N
officers lawfully acting under Part III of the
Immigration Ordinance (串謀向人民入境事務處職員作虛假聲
O 明) O
P --------------------- P
Reasons for Sentence
Q Q
---------------------
R R
1. The 1st defendant pleaded guilty to two charges:
S Charges 1 and 3. D2 was convicted after trial of Charges 2, 3 S
and 4.
T T
U U
CRT33/18.5.2012/ML 1 DCCC1167/2011/Sentence
V V
A A
2. The first charge is an offence of breach of condition
of stay, contrary to section 41 of the Immigration Ordinance,
B B
Cap.115, against the 1st defendant.
C C
3. The second charge is against the 2nd defendant of
D aiding and abetting the breach of condition of stay of D1 of the D
same offence.
E E
4. The third charge, against both accused, is a
F F
conspiracy to defraud, contrary to Common Law, and concerns the
G submissions of false documents to the Immigration Department G
dishonestly by the defendants in submitting 26 false
H applications for employment of domestic helpers and their visas H
and supporting documents such as proof of address and proof of
I I
income.
J J
5. The fourth charge, against both accused, but to which
K
only the 4th defendant has been found guilty of, as the fourth K
charge is being left on the file against D1, is a conspiracy to
L make false statements or representations to Immigration L
officers, again in relation to false domestic helper contracts.
M M
6. The circumstances of the offence are that between
N N
March 2011 to August 2011, D1 and D2 conspired together and did
submit false documents and made false representations to the
O O
Immigration officers of the Immigration Department in order to
P facilitate the processing of false domestic helper contracts P
with bogus employers. The proposed domestic helpers never
Q intended to work as domestic helpers. Q
R R
7. At the material time, D1 was in breach of her
condition of stay in Hong Kong, as she was only allowed
S S
employment as a domestic helper, when in fact, she worked as an
T employment agent. D2 was the sole proprietor of the employment T
agency who employed D1 and was thus aiding and abetting D1’s
U breach of condition of stay in Hong Kong. U
CRT33/18.5.2012/ML 2 DCCC1167/2011/Sentence
V V
A A
8. All in all, there were a total of 26 false
B B
applications made to the Immigration Department. 13 of the
C applications were granted employment visas, as unbeknown to the C
Immigration officers, the contracts or supporting documents were
D bogus. The remaining half of the applications, the Immigration D
officers refused to issue their visas, as they had detected the
E E
falsity of such applications.
F F
9. The defendants’ involvement in the false applications
G started in or about March 2011, when the 1st defendant met an G
older Chinese man known to her only by the name of “Mr Sze”.
H Mr Sze had approached D1 when she was working at D2’s employment H
agency.
I I
10. Mr Sze supplied the names of the bogus employers and
J J
all false supporting documents, whilst D1 and D2 would find the
K
intended domestic helpers. Some domestic helpers would just K
randomly walk into the agency and seek bogus contracts.
L L
11. There was an attraction for the defendants in this
M scheme, as there was more lucrative money to be made compared to M
the domestic helper contract application fees.
N N
12. Agency fees for genuine applications would generally
O O
be a small fraction of the price paid by the domestic helper for
P the bogus applications. The domestic helpers paid about P
$25,000 per application and the money would be shared amongst
Q the defendants and Mr Sze. Q
R R
13. In this scheme, D1 received about $20,000 whilst D2
received about $30,000 from these bogus applications.
S S
T 14. There are no tariffs laid down for these offences. T
U U
CRT33/18.5.2012/ML 3 DCCC1167/2011/Sentence
V V
A A
15. Similar offences were considered in R v Durup,
CACC 194/1996. In that case, there were 27 charges relating to
B B
seven domestic helpers. The court held then that the appropriate
C sentence after trial was one of 3 years’ imprisonment. C
D 16. In R v Loh Wah Theam, Saied J accepted a sentence of D
4 years’ imprisonment was not inappropriate, and when giving
E E
judgment for the Court of Appeal, he considered what the Court
of Appeal said in Ching Wai Fan Carina [1995] 2 HKC 217:
F F
G “after considering Durup, MacDougall VP said (at page G
220):
H ‘In R v Mak Chun Hin (CrimApp 458/1992, H
unreported), which was a case relating to a
conspiracy in the course of which forged contracts
I of employment were created to support the grant of I
employment visas to prospective employees, and
J which involved millions of dollars, another J
division of this court expressed the view that a
sentence in the region of 1-year imprisonment would
K have been appropriate. While we consider that that K
is somewhat a benevolent view and that the level of
sentence for this type of offence has hitherto been
L L
unduly low, we are not prepared to say that in such
a sentencing climate, the judge was wrong to have
M passed the sentences which he did. However, those M
who commit this type of offence in the future can
expect to be dealt with more severely than this
N respondent and the defendants in Durup, Mak and N
other cases.’”
O O
17. Immigration regulations and Immigration officers’
P duties are an important safeguard in the proper and legal P
employment of persons in Hong Kong.
Q Q
18. The Immigration Department deal with many thousands of
R R
applications nowadays for the employment of domestic helpers,
whether they be new applicants or applicants extending their
S S
visas.
T T
19. What the defendants were doing was defrauding a
U government department in dishonestly representing that these U
CRT33/18.5.2012/ML 4 DCCC1167/2011/Sentence
V V
A A
domestic helpers would work here as helpers, when in fact, there
was no intention that they would do so. They would have taken
B B
employment in other fields.
C C
20. The main purpose of the restrictions on their visas is
D to prevent them from working in the community illegally. The D
defendants were paid by those persons. It is difficult in most
E E
cases for the authorities to uncover the deception.
F F
21. This is clearly a very serious offence and precedent
G shows that an element of deterrence in sentences must be passed. G
H 22. Both defendants are of clear record. They are H
Filipinas.
I I
23. D1 is 52 years old. She was called as a witness for
J J
the prosecution by giving evidence against her co-accused, D2.
K
Her evidence has assisted the prosecution in securing a K
conviction against D2.
L L
24. I have taken into consideration all the mitigation put
M forward by her counsel, Ms Ody Lai, and the letters written by M
the defendant and her sister.
N N
25. D1 came to Hong Kong initially to work as a domestic
O O
helper in 1996. Up until 2006, she was a hardworking, caring
P member of her family. She assisted in the support of her five P
siblings and family in the Philippines, eventually, I am told,
Q giving opportunities for her sisters to come to work in Hong Q
Kong as domestic helpers and some of whom have now gone to
R R
Canada to work as caregivers.
S S
26. However, in 2006, her husband suffered a stroke and
T money was needed for his hospitalisation and medication. Since T
D1 was in desperate need of more money than she was earning as a
U U
CRT33/18.5.2012/ML 5 DCCC1167/2011/Sentence
V V
A A
domestic helper, she changed her employment to become an
employment agent.
B B
C 27. She continued to work as an employment agent all C
along, when in 2011, she met this man, Mr Sze, and became
D involved in these bogus applications and these current offences. D
Mr Sze had supplied all the information on the employers and
E E
false documents and D1 filled in all the forms and did the
paperwork.
F F
G 28. D2 is 30 years of age. I convicted her after trial of G
the three offences.
H H
29. She lives in Hong Kong as a permanent resident, having
I I
received her status as her parents were permanent residents. She
was otherwise brought up in the Philippines until she came to
J J
Hong Kong when she was 16 years old. She has lived here since.
K
Her parents moved back to the Philippines after her father had a K
stroke, and I understand he passed away in 2010.
L L
30. She engaged in various employments until she set up
M her employment agency, BFF, in 2009, but since the set-up of M
BFF, she was struggling in making ends meet in the business. She
N N
was, however, provided for by her long-term boyfriend. He
provided her with the necessary finance and assistance in
O O
maintaining her living and costs related to BFF.
P P
31. She became involved with D1 in March 2011 when she
Q employed D1 at her agency so as to boost her business. Q
R R
32. She is, I am informed by Mr Collins her counsel,
suffering from high blood pressure and is on medication.
S S
T 33. The defendants knowingly and dishonestly made 25 bogus T
applications to the Immigration Department, to which they
U received rewards. They submitted these applications over a U
CRT33/18.5.2012/ML 6 DCCC1167/2011/Sentence
V V
A A
period of about four months. They were made under the umbrella
of D2’s employment agency. This was a business operation and
B B
scheme by the defendants with Mr Sze to defraud the Hong Kong
C government. C
D 34. I accept the defendant’s business not only carried out D
bogus but also genuine contracts of employment of domestic
E E
helpers. Their attraction was, of course, in receiving much
larger payments for these bogus contracts.
F F
G 35. Even though D1 was the one doing all the paperwork, I G
do consider that the defendants share a similar degree of
H culpability. H
I I
36. I have had regard to the mitigation and the cases
submitted to me by counsel for D1 and D2.
J J
K
37. Taking into account all the circumstances of the K
offences, and in very brief summary the 25 bogus applications
L within the four months by the defendants and a Mr Sze as L
employment agents, receiving rewards of $20,000 and $30,000
M respectively and perpetrating a fraud on the HKSAR government, I M
consider a starting point of 3½ years’ imprisonment to be
N N
appropriate for Charges 3 and 4.
O O
38. For Charges 1 and 2, concerning D1’s breach of
P condition of stay and D2’s aiding and abetting her breach, I P
consider a starting point of 3 months to be appropriate.
Q Q
39. For D1, on Charge 1, the starting point of 3 months’
R R
imprisonment shall be reduced to 2 months in taking into account
your plea of guilty.
S S
T 40. For D2, on Charge 2, you are sentenced to 3 months’ T
imprisonment.
U U
CRT33/18.5.2012/ML 7 DCCC1167/2011/Sentence
V V
A A
41. On Charge 3, as I mentioned, a starting point of
3½ years’ imprisonment.
B B
C 42. D1 has given assistance to the prosecution by giving C
truthful and reliable evidence against D2.
D D
43. Taking that into consideration, together with her
E E
guilty plea and remorse, I give a discount of 50 per cent
reduction in her sentence of 3½ years.
F F
G 44. For Charge 3, therefore, D1 is sentenced to 1 year and G
9 months’ imprisonment.
H H
45. For D2, on Charge 3 you are sentenced to 3½ years and
I I
the same sentence is to be passed on you for Charge 4:
3½ years.
J J
K
46. In sentencing the defendants, I must take into account K
the principle of totality.
L L
47. The third and fourth charges arise out of the same set
M of facts. However, the first and second offences were distinct M
and separate offences.
N N
48. I, therefore, order the sentences to run partly
O O
concurrent and partly consecutive.
P P
49. I order 1 month of Charge 1 and 2 months of Charge 2
Q to run consecutive to Charges 3 and 4, and the remaining charges Q
are to run concurrent to each other.
R R
50. D1, that means that you will be sentenced to 1 year
S S
10 months’ imprisonment, and D2, you shall be sentenced to
T 3 years 8 months’ imprisonment. T
U
(S D’Almada Remedios) U
District Judge
CRT33/18.5.2012/ML 8 DCCC1167/2011/Sentence
V V
A A
DCCC1167/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1167 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Mendoza Zenaida Tabilog (D1)
F Romero Jay Nalyn Uy (D2) F
G G
----------------------
H Before: H H Judge S. D’Almada Remedios H
Date: 18 May 2012 at 3.10 pm
Present: Ms Winsome Chan, SPP of the Department of Justice, for
I HKSAR I
Ms Ody Lai, instructed by Wong & Co., for the
J 1st Defendant J
Mr James Collins, instructed by Yaddy Cheung & Co.,
assigned by the Director of Legal Aid, for the
K 2nd Defendant K
Offence: (1) Breach of condition of stay (違反逗留條件)
L
(2) Aiding, abetting, counselling or procuring breach L
of condition of stay by another person (協助及教唆他
人違反逗留條件)
M (3) Conspiracy to defraud (串謀詐騙) M
(4) Conspiracy to make or cause to be made false
N statements or representations to immigration N
officers lawfully acting under Part III of the
Immigration Ordinance (串謀向人民入境事務處職員作虛假聲
O 明) O
P --------------------- P
Reasons for Sentence
Q Q
---------------------
R R
1. The 1st defendant pleaded guilty to two charges:
S Charges 1 and 3. D2 was convicted after trial of Charges 2, 3 S
and 4.
T T
U U
CRT33/18.5.2012/ML 1 DCCC1167/2011/Sentence
V V
A A
2. The first charge is an offence of breach of condition
of stay, contrary to section 41 of the Immigration Ordinance,
B B
Cap.115, against the 1st defendant.
C C
3. The second charge is against the 2nd defendant of
D aiding and abetting the breach of condition of stay of D1 of the D
same offence.
E E
4. The third charge, against both accused, is a
F F
conspiracy to defraud, contrary to Common Law, and concerns the
G submissions of false documents to the Immigration Department G
dishonestly by the defendants in submitting 26 false
H applications for employment of domestic helpers and their visas H
and supporting documents such as proof of address and proof of
I I
income.
J J
5. The fourth charge, against both accused, but to which
K
only the 4th defendant has been found guilty of, as the fourth K
charge is being left on the file against D1, is a conspiracy to
L make false statements or representations to Immigration L
officers, again in relation to false domestic helper contracts.
M M
6. The circumstances of the offence are that between
N N
March 2011 to August 2011, D1 and D2 conspired together and did
submit false documents and made false representations to the
O O
Immigration officers of the Immigration Department in order to
P facilitate the processing of false domestic helper contracts P
with bogus employers. The proposed domestic helpers never
Q intended to work as domestic helpers. Q
R R
7. At the material time, D1 was in breach of her
condition of stay in Hong Kong, as she was only allowed
S S
employment as a domestic helper, when in fact, she worked as an
T employment agent. D2 was the sole proprietor of the employment T
agency who employed D1 and was thus aiding and abetting D1’s
U breach of condition of stay in Hong Kong. U
CRT33/18.5.2012/ML 2 DCCC1167/2011/Sentence
V V
A A
8. All in all, there were a total of 26 false
B B
applications made to the Immigration Department. 13 of the
C applications were granted employment visas, as unbeknown to the C
Immigration officers, the contracts or supporting documents were
D bogus. The remaining half of the applications, the Immigration D
officers refused to issue their visas, as they had detected the
E E
falsity of such applications.
F F
9. The defendants’ involvement in the false applications
G started in or about March 2011, when the 1st defendant met an G
older Chinese man known to her only by the name of “Mr Sze”.
H Mr Sze had approached D1 when she was working at D2’s employment H
agency.
I I
10. Mr Sze supplied the names of the bogus employers and
J J
all false supporting documents, whilst D1 and D2 would find the
K
intended domestic helpers. Some domestic helpers would just K
randomly walk into the agency and seek bogus contracts.
L L
11. There was an attraction for the defendants in this
M scheme, as there was more lucrative money to be made compared to M
the domestic helper contract application fees.
N N
12. Agency fees for genuine applications would generally
O O
be a small fraction of the price paid by the domestic helper for
P the bogus applications. The domestic helpers paid about P
$25,000 per application and the money would be shared amongst
Q the defendants and Mr Sze. Q
R R
13. In this scheme, D1 received about $20,000 whilst D2
received about $30,000 from these bogus applications.
S S
T 14. There are no tariffs laid down for these offences. T
U U
CRT33/18.5.2012/ML 3 DCCC1167/2011/Sentence
V V
A A
15. Similar offences were considered in R v Durup,
CACC 194/1996. In that case, there were 27 charges relating to
B B
seven domestic helpers. The court held then that the appropriate
C sentence after trial was one of 3 years’ imprisonment. C
D 16. In R v Loh Wah Theam, Saied J accepted a sentence of D
4 years’ imprisonment was not inappropriate, and when giving
E E
judgment for the Court of Appeal, he considered what the Court
of Appeal said in Ching Wai Fan Carina [1995] 2 HKC 217:
F F
G “after considering Durup, MacDougall VP said (at page G
220):
H ‘In R v Mak Chun Hin (CrimApp 458/1992, H
unreported), which was a case relating to a
conspiracy in the course of which forged contracts
I of employment were created to support the grant of I
employment visas to prospective employees, and
J which involved millions of dollars, another J
division of this court expressed the view that a
sentence in the region of 1-year imprisonment would
K have been appropriate. While we consider that that K
is somewhat a benevolent view and that the level of
sentence for this type of offence has hitherto been
L L
unduly low, we are not prepared to say that in such
a sentencing climate, the judge was wrong to have
M passed the sentences which he did. However, those M
who commit this type of offence in the future can
expect to be dealt with more severely than this
N respondent and the defendants in Durup, Mak and N
other cases.’”
O O
17. Immigration regulations and Immigration officers’
P duties are an important safeguard in the proper and legal P
employment of persons in Hong Kong.
Q Q
18. The Immigration Department deal with many thousands of
R R
applications nowadays for the employment of domestic helpers,
whether they be new applicants or applicants extending their
S S
visas.
T T
19. What the defendants were doing was defrauding a
U government department in dishonestly representing that these U
CRT33/18.5.2012/ML 4 DCCC1167/2011/Sentence
V V
A A
domestic helpers would work here as helpers, when in fact, there
was no intention that they would do so. They would have taken
B B
employment in other fields.
C C
20. The main purpose of the restrictions on their visas is
D to prevent them from working in the community illegally. The D
defendants were paid by those persons. It is difficult in most
E E
cases for the authorities to uncover the deception.
F F
21. This is clearly a very serious offence and precedent
G shows that an element of deterrence in sentences must be passed. G
H 22. Both defendants are of clear record. They are H
Filipinas.
I I
23. D1 is 52 years old. She was called as a witness for
J J
the prosecution by giving evidence against her co-accused, D2.
K
Her evidence has assisted the prosecution in securing a K
conviction against D2.
L L
24. I have taken into consideration all the mitigation put
M forward by her counsel, Ms Ody Lai, and the letters written by M
the defendant and her sister.
N N
25. D1 came to Hong Kong initially to work as a domestic
O O
helper in 1996. Up until 2006, she was a hardworking, caring
P member of her family. She assisted in the support of her five P
siblings and family in the Philippines, eventually, I am told,
Q giving opportunities for her sisters to come to work in Hong Q
Kong as domestic helpers and some of whom have now gone to
R R
Canada to work as caregivers.
S S
26. However, in 2006, her husband suffered a stroke and
T money was needed for his hospitalisation and medication. Since T
D1 was in desperate need of more money than she was earning as a
U U
CRT33/18.5.2012/ML 5 DCCC1167/2011/Sentence
V V
A A
domestic helper, she changed her employment to become an
employment agent.
B B
C 27. She continued to work as an employment agent all C
along, when in 2011, she met this man, Mr Sze, and became
D involved in these bogus applications and these current offences. D
Mr Sze had supplied all the information on the employers and
E E
false documents and D1 filled in all the forms and did the
paperwork.
F F
G 28. D2 is 30 years of age. I convicted her after trial of G
the three offences.
H H
29. She lives in Hong Kong as a permanent resident, having
I I
received her status as her parents were permanent residents. She
was otherwise brought up in the Philippines until she came to
J J
Hong Kong when she was 16 years old. She has lived here since.
K
Her parents moved back to the Philippines after her father had a K
stroke, and I understand he passed away in 2010.
L L
30. She engaged in various employments until she set up
M her employment agency, BFF, in 2009, but since the set-up of M
BFF, she was struggling in making ends meet in the business. She
N N
was, however, provided for by her long-term boyfriend. He
provided her with the necessary finance and assistance in
O O
maintaining her living and costs related to BFF.
P P
31. She became involved with D1 in March 2011 when she
Q employed D1 at her agency so as to boost her business. Q
R R
32. She is, I am informed by Mr Collins her counsel,
suffering from high blood pressure and is on medication.
S S
T 33. The defendants knowingly and dishonestly made 25 bogus T
applications to the Immigration Department, to which they
U received rewards. They submitted these applications over a U
CRT33/18.5.2012/ML 6 DCCC1167/2011/Sentence
V V
A A
period of about four months. They were made under the umbrella
of D2’s employment agency. This was a business operation and
B B
scheme by the defendants with Mr Sze to defraud the Hong Kong
C government. C
D 34. I accept the defendant’s business not only carried out D
bogus but also genuine contracts of employment of domestic
E E
helpers. Their attraction was, of course, in receiving much
larger payments for these bogus contracts.
F F
G 35. Even though D1 was the one doing all the paperwork, I G
do consider that the defendants share a similar degree of
H culpability. H
I I
36. I have had regard to the mitigation and the cases
submitted to me by counsel for D1 and D2.
J J
K
37. Taking into account all the circumstances of the K
offences, and in very brief summary the 25 bogus applications
L within the four months by the defendants and a Mr Sze as L
employment agents, receiving rewards of $20,000 and $30,000
M respectively and perpetrating a fraud on the HKSAR government, I M
consider a starting point of 3½ years’ imprisonment to be
N N
appropriate for Charges 3 and 4.
O O
38. For Charges 1 and 2, concerning D1’s breach of
P condition of stay and D2’s aiding and abetting her breach, I P
consider a starting point of 3 months to be appropriate.
Q Q
39. For D1, on Charge 1, the starting point of 3 months’
R R
imprisonment shall be reduced to 2 months in taking into account
your plea of guilty.
S S
T 40. For D2, on Charge 2, you are sentenced to 3 months’ T
imprisonment.
U U
CRT33/18.5.2012/ML 7 DCCC1167/2011/Sentence
V V
A A
41. On Charge 3, as I mentioned, a starting point of
3½ years’ imprisonment.
B B
C 42. D1 has given assistance to the prosecution by giving C
truthful and reliable evidence against D2.
D D
43. Taking that into consideration, together with her
E E
guilty plea and remorse, I give a discount of 50 per cent
reduction in her sentence of 3½ years.
F F
G 44. For Charge 3, therefore, D1 is sentenced to 1 year and G
9 months’ imprisonment.
H H
45. For D2, on Charge 3 you are sentenced to 3½ years and
I I
the same sentence is to be passed on you for Charge 4:
3½ years.
J J
K
46. In sentencing the defendants, I must take into account K
the principle of totality.
L L
47. The third and fourth charges arise out of the same set
M of facts. However, the first and second offences were distinct M
and separate offences.
N N
48. I, therefore, order the sentences to run partly
O O
concurrent and partly consecutive.
P P
49. I order 1 month of Charge 1 and 2 months of Charge 2
Q to run consecutive to Charges 3 and 4, and the remaining charges Q
are to run concurrent to each other.
R R
50. D1, that means that you will be sentenced to 1 year
S S
10 months’ imprisonment, and D2, you shall be sentenced to
T 3 years 8 months’ imprisonment. T
U
(S D’Almada Remedios) U
District Judge
CRT33/18.5.2012/ML 8 DCCC1167/2011/Sentence
V V