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 Remedios9/5/2012
DCCC1167/2011
由此
A A
DCCC 1167/2011
B B
IN THE DISTRICT COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
CRIMINAL CASE NO. 1167 OF 2011
D D
____________
E E
HKSAR
F Against F
G G
st
MENDOZA Zenaida Tabilog 1 Defendant
H ROMERO Jay Nalyn Uy 2nd Defendant H
I ____________ I
J Coram: H.H. Judge S. D’Almada Remedios in Court J
Dates of Hearing: - 2-4, 7-10 May 2012
K K
Date of Verdict: - 18 May 2012
L Offences: (2) Aiding, abetting, counselling or procuring breach of L
condition of stay by another person (協助及教唆他人違反
M 逗留條件) M
(3) Conspiracy to defraud (串謀詐騙)
N (4) Conspiracy to make or cause to be made false N
statements or representations to immigration officers
O lawfully acting under Part III of the Immigration Ordinance O
(串謀向人民入境事務處職員作虛假聲明)
P P
Q
REASONS FOR VERDICT FOR D2 Q
R R
1. This trial is only concerned with the determination of
S
whether the prosecution have proved beyond reasonable doubt that the 2nd S
defendant (D2) is guilty of the offences, she having pleaded not guilty to
T T
all charges. D1 has admitted the commission of the offences.
U U
1
V V
由此
A A
2. Overview
B B
The offences allege that the 1st and 2nd defendants (D1 and
C D2) between the months of March 2011 to August 2011 conspired C
together and did submit false documents and made false representations
D D
to immigration officers of the Immigration Department in order to
E facilitate the processing of false domestic helper contracts with bogus E
employers. At the material time D1 was in breach of her condition of
F F
stay in Hong Kong as she was only allowed employment as a domestic
G helper when in fact she worked as an employment agent. D2 was the sole G
proprietor of the employment agency whose address was used on the
H H
applications and who employed D1, thus aiding and abetting her breach
I I
of condition of stay.
J J
3. The facts
K K
Between September 2010 to July 2011 the Immigration
L
Department received 26 separate sets of applications for employment of L
26 domestic helpers from abroad made by the employer and the
M M
respective visa applications by the domestic helper. The supporting
N documents from the employers such as proof of income and address were N
false documents. The prospective employers named on the forms had no
O O
knowledge of the respective applications. It was not intended that the
P domestic helpers would work for those employers. P
Q Q
4. All 26 bogus employers or “sponsors” as was the jargon,
R submitted the same correspondence address on the application form R
namely Room 710C, Ho King Commercial Centre, 216 Fa Yuen Street,
S S
Mong Kok, Kowloon (the Mong Kok address/office).
T T
U U
2
V V
由此
A A
5. From September 2010 to August 2011, 13 of the 26
B B
applicants were granted visas to work in Hong Kong under their
C employment contracts unbeknown to the immigrations officers that they C
were bogus contracts or false documents. Those applicants were listed in
D D
Appendix A. The other half were refused visas, as on those applications
E the immigration officers noticed the falsity of the documents. Those E
applicants were listed in Appendix B.
F F
G 6. Immigration officers raided the Mong Kok address on 22 G
August 2011. At that time D1 was in the office. D2 turned up at the
H H
premises sometime after the initial entry by the immigration officers.
I Both the defendants were arrested and cautioned. Upon search of the I
Mong Kok office photocopies of the documents in respect of the 26
J J
bogus applications were found. D1 produced the key to one of the filing
K cabinets in the office where some of the documents were found. K
L 7. The defendants are Filipina women. D1 was at all material L
times in Hong Kong under a domestic helper visa. D1’s status as a
M M
domestic helper was granted to her since December 2005 and continued
N until January 2013. D2 is a permanent resident. She acquired her N
residency through her parents as they are Hong Kong permanent residents.
O O
P
8. Despite D1’s condition of stay imposed upon her by the P
Q
Immigration Department that she only work in Hong Kong as a domestic Q
helper she breached her condition of stay as she and D2 worked as
R R
employment agents principally for overseas Filipina domestic helpers.
S S
9. From April 2011 the Mong Kok address was the registered
T address of D2’s employment agency. D2 was the sole proprietor of an T
employment agency known as BFF Employment Services and Trading
U U
3
V V
由此
A A
Company (BFF). Its employment agency licence was granted to D2.
B B
BFF was the only employment agency registered at the Mong Kok
C address from April 2011. The Mong Kok address was used as the C
correspondence address for the 26 bogus applications to the Immigration
D D
Department.
E E
10. Background of EZM and BFF employment agencies
F F
From about September 2006 D1 was the registered partner of
G the employment agency E.Z.M. Overseas Employment and Trade Centre G
(EZM). EZM was granted a licence annually to operate as an
H H
employment agency from 29 September 2006 until 10 September 2010.
I I
Its registered offices were all along at the Mong Kok address. D1 worked
J
principally as an employment agent of EZM since September 2006. J
K K
11. After the expiry of EZM’s licence in September 2010. D1
L
continued to rent the office premises at Mong Kok. L
M M
12. D2’s employment agency BFF’s licence was first issued on
N 24 August 2009. BFF’s registered address was at premises in Kimberly N
Road in Tsim Sha Tsui (the Tsim Sha Tsui address). The Commissioner
O O
of Labour issued the registered change of address to the Mong Kok office
P for BFF on 26 April 2011. BFF’s licence was valid at all material times P
and valid until 23 August 2012.
Q Q
13. When BFF changed its address to Mong Kok, EZM’s licence
R R
had expired some seven months earlier in September 2010.
S S
14. Of the 26 application forms and employment contracts, D1
T T
filled in all of the particulars except for the signature of the domestic
U U
4
V V
由此
A A
helper and the employer. Thereafter she asked one Ms Helen Koon to
B B
take the application forms and supporting documents to be submitted to
C the Immigration Department. C
D D
15. After D2’s arrest and when being interviewed by the
E
immigration officers under caution on the day of her arrest and the day E
following, D2 had made voluntarily statements in two record of
F F
interviews which contained admissions to some of the offences.
G G
16. All of the above facts were not in dispute.
H H
17. The present trial and charges
I I
As a result of the above facts and admissions made by the
J defendants under caution the defendants were charged jointly and J
severally with the four offences on the charge sheet.
K K
L 18. D1’s charges L
D1 was charged with 3 offences. D1 pleaded guilty to two
M M
charges. The remaining charge was left on the court file and D1 was
N granted immunity under that charge (charge 4). N
O O
19. D1 admitted that by working as an employment agent she
P P
breached her condition of stay (charge 1). She admitted that she
Q
conspired with D2 to submit false documents in support of the 26 Q
applications made to the Immigration Department (charge 3).
R R
20. D1 gave evidence for the prosecution as to her and D2’s
S S
involvement in the commission of the offences. Principally that there
T was an agreement between herself and D2 to submit false documents and T
make false representations to immigration officers to facilitate the bogus
U U
5
V V
由此
A A
employment contracts for the domestic helpers. D1 is waiting to be
B B
sentenced after the trial of D2 on the charges she had admitted.
C C
21. D2’s charges
D D
D2 was charged with three offences. D2 has pleaded not
E guilty to charges 2, 3 and 4. E
F F
22. In short, charge 2 alleges that D2 aided and abetted D1 to
G breach her condition of stay. D2 is jointly charged with D1 in charges 3 G
and 4 of conspiracy to defraud the immigration officers by dishonestly
H H
submitting false documents (charge 3) and conspiracy to knowingly make
I I
false representations to immigrations officers (charge 4).
J J
23. D2’s case
K K
D2 denied she was a party to any agreement with D1 in
L
submitting false documents or making false representations to the L
Immigration Department. It was D2’s case that although her agency BFF
M M
had its offices in Mong Kok and was the only registered employment
N agency there at the material times, it was her belief that EZM agency was N
still operating there as it had done so for the past years.
O O
P 24. D2’s belief was that the Mong Kok premises were the P
registered address of both EZM and BFF and not exclusively that of BFF.
Q Q
R 25. Consequentially all the 26 application forms submitted by D1 R
did not involve her and she did not conspire with D1 to submit the bogus
S S
applications.
T T
U U
6
V V
由此
A A
26. It was D2’s case that D1 worked for D1’s own employment
B B
agency EZM whilst D2 carried out her business under BFF at the Mong
C Kok office exclusively. C
D D
27. D2 denies she employed D1 to work for BFF or that she had
E any knowledge that D1 was a domestic helper at any time. It was D2’s E
case that she believed that D1 was either a permanent resident or had
F F
permission to work as an employment agent as when D2 met D1 in about
G 2002 D1 was working as an employment agent then and continued to do G
so all along.
H H
I 28. D2 only came to know that D1 was a domestic helper when I
PW3 the immigration assistant told her on the 22 August 2011 at the
J J
Mong Kok office when the immigration officers conducted their raid.
K K
29. Although the records of interviews were voluntarily made
L and were an accurate record of the answers given by D2, D2 said that the L
answers were not what she had intended or meant to say. She was not
M M
feeling well at the time and for that reason said things she did not mean to
N say. N
O O
30. Issues
P P
Under charge 2 the issues are: -
Q
(a) whether D2 employed D1 and Q
(b) if D2 did employ D1, did D2 know at the time of her
R R
employment of D1 that D1 was a domestic helper and she
S
was not permitted to carry out any other work other than S
as a domestic helper?
T T
U U
7
V V
由此
A A
31. The issues in respect to charges 3 and 4 are whether: -
B B
(a) At the material times did D2 know that D1 was submitting
C false documents in support of the applications and making false C
representations to the immigration officers,
D D
(b) If D2 did know,
E (i) was there an agreement between D1 and D2 that they E
would submit false documents to the immigration
F F
officers for the employment of domestic helpers
G (charge 3) and G
(ii) was there an agreement between D1 and D2 to make
H H
false representations to the immigrations officers to
I I
facilitate domestic helpers contracts knowing that the
J
applications contained bogus employers (Charge 4). J
K K
32. D2’s Record of Interviews (exhibit P61 and P62)
L
(a) was D2 feeling unwell during the interviews, L
(b) if D2 was feeling unwell did she as a result give the
M M
answers she did as she was not concentrating,
N (c) were the answers in the two record of interviews what D2 N
had meant to say and
O O
(d) if the answers were what D2 meant to say were they
P truthful answers? P
Q Q
33. The witnesses
R The prosecution called three witnesses. PW1 was an R
immigration officer who explained the procedures of and supporting
S S
documents required for an application for employment of a domestic
T helper and a visa. He was the officer who had noticed the falsity in some T
of the documents such as the incorrect tax year. PW2 was the co-accused
U U
8
V V
由此
A A
D1. PW3 was an immigration assistant who was tendered for cross-
B B
examination. PW3 was present when D1 and D2 were arrested for the
C offences on 22 August 2010 at the Mong Kok office. C
D D
34. The defendant elected to give evidence she called no defence
E witnesses. E
F F
35. The evidence
G A large portion of the prosecution case was admitted by D2. G
There were four sets of admitted facts marked as PA1-PA4. Two
H H
voluntary and accurate records of interview (exhibit P61 and P62) made
I I
by D2 were admitted into evidence. The majority of the salient facts have
J
been mentioned above. J
K K
36. The prosecution case
L
The principal witness for the prosecution was D1. The L
prosecution also relied on admissions in the records of interview. The
M M
immigration officer PW1’s evidence was not challenged. Nothing turned
N on PW3’s evidence. N
O O
37. D1’s (PW2’s) evidence
P D1 is 52 years of age. At the time she was giving evidence P
she was remanded in Tai Lam Women’s Detention Centre awaiting
Q Q
sentence for the two charges she had pleaded guilty to.
R R
38. D1 met D2 in about 2001 in Hong Kong through the
S S
introduction of mutual friends. They maintained contact by phone but not
T all the time. D1 remembered that D2 had contacted her before D2 T
applied for BFF’s employment agency licence in 2009. After the
U U
9
V V
由此
A A
commencement of BFF’s operation, D2 would often make telephone calls
B B
to D1 to ask D1 advice on how to handle certain employment applications.
C C
39. D1’s testimony was that before EZM’s licence had expired in
D D
September 2010 she was in communication with D2 regularly. D1 and
E D2 had agreed that when EZM’s licence expired D1 would transfer all E
her clients and networks to D2 and D2 would then transfer BFF’s licence
F F
to the Mong Kok address immediately and D2 would employ D1 to work
G for BFF. G
H H
40. However despite D2’s agreement that D2 would move BFF
I to Mong Kok in or about late September 2010 D2 did not move BFF to I
the Mong Kok offices until about late February or early March 2011. D1
J J
said she did not know why it took D2 so long to transfer BFF’s business
K to Mong Kok as EZM’s licence expired on 28 September 2010. K
L 41. However D1 said in between the expiry of EZM’s licence L
and BFF moving to Mong Kok she and D2 had discussions about the
M M
transfer of the rental deposit to D2 which D1 had already paid on the
N Mong Kok premises. However as D2 did not give D1 the rental deposit, N
D1 continued to occupy the offices at Mong Kok. After BFF moved to
O O
Mong Kok, D2 however paid for the rent and expenses but the utility bills
P
and the lease remained in D1’s name. P
Q Q
R 42. D1 was adamant that after EZM’s licence expired in R
September 2010 D1 did not make any fresh or new domestic helper
S S
employment applications to the Immigration Department. D1 said that as
T EZM did not have a licence it ceased its business operations. D1 clarified T
however that even after the expiry of EZM’s licence D1 did and was
U U
10
V V
由此
A A
required to follow up on applications that had already been filed with the
B B
Immigration Department prior to expiry of EZM’s licence.
C C
43. D1’s evidence was that all new applications were only
D D
submitted by D1 to the Immigration Department after BFF moved to the
E
Mong Kok premises. Those applications were those as listed in E
Appendix A and B except the one listed as A4 in Appendix A.
F F
44. D1 recalled that it was sometime in late February or early
G G
March 2011 that D2 moved BFF to the Mong Kok offices. D2 had a key
H to the Mong Kok offices though D2 was not there regularly. H
I I
45. Once BFF had moved to the Mong Kok address D2 hired D1
J to work for her at BFF as an employment agent. D1 regarded D2 as her J
boss. D1’s evidence was that D2 knew all along that D1 was a domestic
K K
helper here in Hong Kong.
L L
46. Whilst D1 was working for D2 she made both false and
M M
genuine applications for domestic helpers. She and D2 knew of the false
N information in regard to the bogus 25 applications (except A4 which was N
made in September 2010). She and D2 knowingly commenced making
O O
these bogus applications in March 2011. D1 did not know at the time
P
A4’s application was made that it was false. P
Q Q
47. D1 said that she and D2 knowingly became involved and
R agreed to submit bogus applications to the Immigration Department after R
she, D1 met a man known only to her as Mr. Sze in March 2011. D1
S S
came to know Mr Sze as he just happened to walk into the BFF agency at
T Mong Kok. She did not know Mr Sze before she worked for D2 at BFF. T
U U
11
V V
由此
A A
48. Thereafter Mr Sze supplied D1 with all the details of the
B B
bogus employers and provided her with the false documents (proof of
C income and address documents). D1 and D2 used the jargon of C
“sponsors” to refer to the bogus employers. The proposed domestic
D D
helpers would either be introduced by herself or D2, some however
E would just walk into the agency in person and arrangements would be E
made for them.
F F
G 49. Of the domestic helper applicants who made bogus G
applications D1 herself introduced two of her relatives (in Appendix A,
H H
A3 and Appendix B, B8) and D2 introduced seven.
I I
50. D1 pointed out that the seven applicants introduced by D2
J were those as named in Appendix B listed under B1, 2, 3, 6, 7, 9 and 10. J
D2 had specifically told D1 that she had asked the girls named in B1 and
K K
B2 to look for D1 so that D1 could find them sponsors.
L L
51. D1 herself filled in all of the particulars on the application
M M
forms and the contract except for the signatures of the domestic helper
N and the sponsor. The sponsor’s signature would be on the blank form N
given to her by Mr Sze and Mr Sze would provide all the other particulars
O O
of the employers. After the forms were ready to be submitted she asked
P one Ms Helen Koon who was a part-time employee of D2’s to take the P
application forms and supporting documents to be submitted to the
Q Q
Immigration Department. D2 was not involved in the paper work or
R filling out of the forms. R
S 52. The applicant domestic helpers paid a fee for their bogus S
applications. This was about $25,000 per application. D1 said the
T T
applicants paid in cash. The money was paid once an application was
U U
12
V V
由此
A A
submitted to the Immigration Department. Payment was not dependent
B B
on whether an application was successful. The money was paid to D1,
C D2 or Helen Koon. Thereafter the money was shared. C
D D
53. The fee from each applicant was distributed by giving about
E
$15-18,000 to Mr Sze, $2,000 to D1 and D2 or BFF would get the E
remainder of about $3,000-$5,000 of which some would be used to
F F
defray expenses. D1 would usually hand the money to Mr Sze but when
G D1 was in the Philippines Helen Koon handed the money to Mr Sze. G
H 54. D1 estimated that she earned about $20,000 and D2 more H
than $30,000 from these false applications.
I I
J 55. D1 said that when BFF moved to the Mong Kok address no J
furniture or office equipment was taken there by D2 as D1 agree to leave
K K
all her equipment there as it was in good condition.
L L
56. D2’s evidence
M M
D2 elected to give evidence. She is aged 30. She has a clear
N record. Her oral evidence was at odds and in direct conflict from the N
admissions and some of the statements contained in the two records of
O O
interviews made to the immigration officer in exhibits P61 and P62.
P P
57. D2 did not challenge the voluntariness or importantly the
Q Q
accuracy of the statements made in the record of interview. It was D2’s
R evidence that her mind was not clear because of her medical condition. R
D2’s evidence was that she was not concentrating and came out with
S S
answers that she did not mean.
T T
U U
13
V V
由此
A A
58. During the interview she had very high blood pressure. She
B B
felt that she was about to faint, D2 however never complained about her
C condition to the immigration officers despite the opportunity to do so. C
D D
59. D2 meticulously went through each answer that was
E
predominantly an admission. She did not challenge the accuracy but E
explained that despite what was recorded she had meant something
F F
entirely different from what was stated.
G G
60. It was D2’s evidence that she alone worked for BFF, there
H was no other employee. She had met D1 in about December 2002. D2 H
was introduced to D1 by her friend, at that time D2 knew that D1 worked
I I
in an agency but D2 did not know the name of the agency.
J J
61. D2 only renewed contact with D1 in about December 2010
K K
when she needed to ask D1 advice about some applications for domestic
L
helpers. In December 2010 D2 went to D1’s office in Mong Kok and L
collected some forms. At that time D1 was running an employment
M M
agency there. Displayed on the main door were the words EZM Overseas.
N Inside the office D1 displayed EZM’s licence and business registration. N
There were many people there and EZM was in operation. Notably after
O O
the expiry of EZM’s licence.
P P
62. After D2’s encounter with D1 in December 2010, D2
Q maintained contact with D1 quite regularly. Nothing however was Q
related to business.
R R
S
63. In or about the first week of March 2011 out of the blue D2 S
was told by her landlord to vacate the offices of BFF at Tsim Sha Tsui as
T T
he needed the office space urgently.
U U
14
V V
由此
A A
B 64. D2 then called D1 to ask her how to cancel her employment B
C
agency licence as she no longer had office premises. D1 suggested to D2
C
that D2 could share EZM’s office in Mong Kok. D2 asked her about the
D D
payment of rent and D1 said that it would be very low. D1 said D2 could
E
pay $20 a day as D2 would only hang up her licence at the premises. D2 E
accepted D1’s arrangement and both she and D1 agreed that they would
F F
work separately from each other operating their own respective agencies,
G i.e. EZM and BFF. G
H 65. D2 notified the Labour Department of the necessary change H
of address from the Tsim Sha Tsui to the Mong Kok address in or about
I I
March 2011. The Commissioner of Labour issued the registration of
J change of particulars on the licence on 21 April 2011 (exhibit P70). J
K K
66. D2 moved BFF to the Mong Kok address in or about the end
L of April 2011 or the first week of May 2011. D2 displayed BFF’s licence L
in the Mong Kok office. At that time as D2 did not have a frame D1 took
M M
out EZM’s licence from the frame and then gave the frame to D2 to place
N BFF’s licence. At that time D2 did not examine EZM’s licence, she N
believed it was still valid. She believed EZM was still in operation and
O O
D1 was working under EZM’s licence.
P P
67. D2 did not employ D1. D2 did not know that D1 was a
Q Q
domestic helper as since she had known D1 she knew that D1 worked as
R an employment agent in an employment agency. D2 had not hired Helen R
Koon to work for her but she had introduced Helen to D1, and D1 had
S S
hired Helen Koon.
T T
U U
15
V V
由此
A A
68. D2 did not know anything about the 26 false applications that
B B
D1 made to the Immigration Department when they were made. She
C never introduced any intended domestic helpers to D1 to look for C
sponsors or bogus employers. D2 did not know that D1 was providing
D D
false documents or that the employers were bogus.
E E
69. D2 came to know only in July 2011 that D1 was arranging
F F
bogus applications. Her knowledge came about because D1 had told her.
G She was furious with D1 and told D1 she was taking her licence and G
office away from the Mong Kok office.
H H
70. It was D2’s case that she came to know about the bogus
I I
applications because she had assisted D1 with one of D1’s applicants
J enquiries when D1 was away in the Philippines in July 2011. D1 had J
called D2 in Hong Kong from the Philippines to ask D2 to make
K K
enquiries about two applications related to one named Niocina and
L Solasco named and listed in Appendix B as B2 and B5 as D1 was unable L
to contact Helen Koon. D2 tried to contact Helen Koon herself but was
M M
also unable to do so. D2 therefore agreed to assist D1 as Helen was
N unreachable. N
O O
71. D1 told D2 to collect some documents from the Mong Kok
P P
office however as D2 rarely went to the Mong Kok office D2 did not
Q
have the key to the Mong Kok office. D1 therefore arranged for D2 to Q
collect a key for the Mong Kok office from D1’s sister who was in Hong
R R
Kong. D2 told her where to find the documents in the office.
S S
72. D2 then went and collected the documents with the key
T T
provided by D1’s sister. After that D2 went to the Immigration
U U
16
V V
由此
A A
Department to make enquiries about the visas of those two applicants.
B B
D2 was told that the visas were refused. However the immigration
C officer refused to tell her the reasons for refusal as they were confidential. C
D D
73. After D1 returned from the Philippines, D2 had a telephone
E
conversation with D1. Out of curiosity D2 asked D1 about the refused E
visas. D1 told D2 that one of the applicants Niocina was only sponsored.
F F
D2 knew and understood that sponsored meant the employer just signed
G the contract but that the domestic helper did not actually work with the G
employer. D1 and D2 then argued. D2 said that before moving to the
H H
Mong Kok address she told D1 that D1’s agency must not do anything
I illegal. D2 expressed her strong disapproval of the bogus applications I
and indicated to D1 that she would withdraw her licence from the Mong
J J
Kok office. Then D1 retorted by saying why should D2 be angry when it
K was not D2’s business but her (D1’s) business and that D1 would be K
responsible. Then D1 cut the phone line.
L L
74. D2 called D1 again. D2 told D1 that she was going to the
M M
office to collect the licence and BR however D1 swore at her and cut the
N telephone line. D2 called D1 repeatedly thereafter but D1 refused to N
answer her call.
O O
P 75. Although D2 wanted her licence back, D2 did not go to the P
office again until the day of the raid on 22 August. At about 4.30 pm that
Q Q
day D2 received a call from an unknown Filipina asking her to go the
R Mong Kok office. That female told her that D1 needed her help. D2 R
thought it was an opportune time to retrieve her licence from D1 so she
S S
went up to the Mong Kok offices.
T T
U U
17
V V
由此
A A
76. When D2 arrived at the office at about 5.00 pm she was
B B
surprised as there were many people there. D2 entered and asked what
C the problem was. They took away D2’s identity card and asked D2 if she C
was the licensee of the office. D2 said it was her licence.
D D
E
77. At the office PW3 told D2 that D1 was a domestic helper E
however D2 replied that she had no idea that D1 was a domestic helper.
F F
PW3 then angrily shouted at D2 saying that D2 hired D1 to work in the
G office and that D2 knew D1 was a domestic helper. D2 again reiterated G
she did not know D1 was and denied that she had hired D1.
H H
78. D2 was then arrested and made voluntarily records of
I I
interviews under caution on the day of her arrest and the day following.
J J
79. D2 said that she had not received any payment or
K K
commissions from D1 in respect to any of the bogus applications. She
L had received no income at all from BFF’s business since moving to the L
Mong Kok office.
M M
N 80. As to why BFF’s licence was issued and renewed as of 24 N
August 2011 and valid to 23 August 2012 D2’s evidence was that the
O O
licence renewal procedure for BFF was initiated in June 2011 before D2
P
found out about D1’s bogus application and that Helen Koon had assisted P
Q
her by paying the fee. It was D2’s evidence that the renewal of BFF’s Q
licence was already well underway before D1’s disclosure concerning the
R R
bogus contract of Niocina and therefore a new licence was issued.
S S
T T
U U
18
V V
由此
A A
B 81. PW3’s evidence B
C
PW3 stated in her evidence that she did not have any
C
memory of speaking to D2 however what she did know was that she
D D
would never shout at any suspect or arrested person.
E E
82. Analysis of evidence
F F
From the record of interviews it can be seen that D2 read the
G questions and answers herself and had it read over to her. She agreed it G
was an accurate record of the answers she had provided. During the
H H
interview exhibited at P62 she had a 40-minute rest and meal break at
I 2010 hours and later in the interview she was given a break for about 15 I
minutes. In P61 D2 was asked if she wanted a rest and her answer was
J J
no. The tone of the interviews clearly provides for D2 to state her
K condition or requests and at no time did D2 mention she was feeling K
unwell or that she was feeling faint. I do not believe she was feeling
L L
unwell or faint at the time. She was given ample time to rest.
M M
83. There are clear and unequivocal admissions to charge 2 made
N N
by D2. Much of those admissions are in direct support of D1’s evidence.
O They are in the 1st record of interview Exhibit P61 at answers A8, A9, O
A10, A11, A12 and A13 and in the 2nd record of interview Exhibit P62 at
P P
answers A8, A9. I found that those answers were truthful answers given
Q by D2. Q
R R
84. Those answers show that D2 admitted that she had hired D1
S as one of the persons in charge at her employment agency BFF at the S
Mong Kok address. D2 knew that D1 was a domestic helper in Hong
T T
Kong and that D1 was not permitted to work other than as a domestic
U U
19
V V
由此
A A
helper and was thus working illegally for D2. D2 had asked D1 for D1’s
B B
assistance as D2 was losing money operating BFF. D1 then told D2 to
C move her agency to the Mong Kok address and D1 told D2 that she could C
introduce a lot of domestic helpers to D2 as she had a lot of connections
D D
in Hong Kong. D2 therefore moved BFF to the Mong Kok address so D1
E could assist her to earn more money although she knew it was illegal to E
employ a domestic helper however they did not sign an employment
F F
contract so others would not know that D2 employed D1. D2 seldom
G went to the office but D1 went daily to entertain the customers to process G
employment applications and to pay all the bills of the agency. D2 would
H H
pay D1 HK$20 a day as requested by D1 as her daily travelling allowance.
I I
J
85. D2’s viva voce evidence of giving answers in the records of J
interview she did not mean was farcical and fanciful unworthy of any
K K
belief. The questions were simple and the answers were direct and
L
unequivocal. By and large D2 tried without success to extract herself L
from the admissions she had made.
M M
86. D2’s viva voce evidence was in sharp contrast to the
N N
admissions she made in the records of interviews. A few examples are
O that in her oral evidence D2 said that she only learnt D1 was a domestic O
helper from PW3 on the day of her arrest on 22 August 2010. It is
P P
beyond belief that if that were the truth that D2 did not express that in the
Q interview or answer the questions put to her in that context but expressed Q
the answers in the way she did (see paras 83 and 84).
R R
S
87. In the first record of interview exhibit P61 at Q20 D2 was S
asked if there were other staff working at BFF. D2 answered that there
T T
was a part-time called Helen Poon who is her friend. She would pay
U U
20
V V
由此
A A
HK$200 each time she would instruct Helen to take the documents to go
B B
to the Immigration Department. In her oral evidence D2 denied
C employing Helen. Again it makes no sense at all that D2 would state the C
complete opposite in the record of interview if the truth were that she did
D D
not employ Helen.
E E
88. As can be seen in D2’s answers in the record of interview the
F F
answers are detailed and shows clearly that D2 knew of D1’s status at the
G time she hired D1 and for that reason D2 deliberately did not have a G
written contract of employment so as to hide the fact.
H H
I 89. The tenor of the 2nd record of interview exhibit P62 shows I
that D2 knew that D1 made bogus contracts with an old Chinese man.
J J
Although it is seen in that record of interview that D2 tries to distance
K herself from D1 and the old man and that she was not party to the bogus K
applications it is clear in answer 17 that D2 knew there was something
L L
different about the applications made with the old man and D2 received
M payment from the old man answer 30. M
N 90. D2 said in answer 17 that the commission fees that she N
received from the old man were higher then she would get from other
O O
applications. She could only share several hundred dollars from other
P P
applications whilst with the old man she would be paid $2,000 and the
Q
company will be paid $3,000. Q
R 91. Moreover D2 was asked at Question 30 of the 2 nd record of R
interview how much total payment did she receive in commission from
S S
the old man. Her answer was that that she received HK$12,000 in all for
T four times. She first received $6,000 on May 2011, then $2,000 each T
month in June, July and August 2011 respectively. These answers are
U U
21
V V
由此
A A
again in stark contrast to D2’s oral evidence that she did not receive any
B B
commission or payment for the bogus contracts and any income at all
C from her own business at BFF after moving to the Mong Kok office. C
D D
92. D2’s oral evidence was that she paid D1 $20 per day for
E
displaying her licence in the Mong Kok office. It was D1’s evidence that E
the $20 was intended as a travelling allowance but that eventually D2
F F
never paid her for that. D1 vigorously denied in cross-examination that
G there was an agreement between them that D2 was to pay $20 a day to G
display her licence.
H H
93. Nowhere in the two records of interview does D2 ever
I I
mention the $20 a day licence display charge. She does however mention
J a $20 a day transportation fee. It is no coincidence that the $20 is J
mentioned as the transportation fee because I found, that is the truth,
K K
moreover it supports D1’s evidence. D2’s evidence of the $20 being a
L licence display fee is a fabrication. L
M M
94. Mr Collins submitted that there is clear evidence that D1 was
N involved in these bogus applications long before March 2011 when BFF N
had moved to the Mong Kok address. That is evidence of D1 not telling
O O
the truth that the bogus applications started with meeting Mr Sze in
P March 2011 and with the agreement of D2 and that D2 employed D1. P
Q 95. Mr Collins refers to the one of the twenty-six applications Q
made in September 2010 Appendix A (A4) six months before BFF or D2
R R
was at the Mong Kok office. It was not challenged that twenty-five of the
S twenty-six applications were made from March 2011. S
T T
U U
22
V V
由此
A A
96. Mr Collins submitted that as a bogus application was made in
B B
September 2010 D2 was obviously not involved as D2 had not moved to
C the Mong Kok premises and it was before the alleged agreement in C
September between D1 and D2 to move BFF to the Mong Kok address.
D D
As D1 was dealing with bogus employers before D2 moved to Mong Kok
E it supports D2’s case that D2 was not party to any agreement either then E
or from March 2011.
F F
G 97. As to the applicant in Appendix A4, D1’s evidence was that G
she processed the September 2010 application but she did not know at
H H
that time that the application made was a bogus one. It was D1’s
I evidence, which, I accept that the applicant’s sister brought the papers to I
J
her as the sister worked in Hong Kong, and she was asked to process the J
papers for them, which she believed were genuine.
K K
98. D1’s evidence that she only met Mr Sze in March 2011 and
L L
from then on the bogus applications were made are supported from the
M flurry of applications made from March 2011 and thereafter. All but one M
of the 26 applications listed in Appendix A and Appendix B were made
N N
between March to July 2011. I believe D1’s evidence that she only
O knowingly made the bogus applications in agreement with D2 only when O
she commenced working at BFF and was employed by D2 from March
P P
2011.
Q Q
99. I found D2’s account of not having a key to the Mong Kok
R R
premises incredulous. On D2’s account she was paying $20 a day to D1
S
to display BFF’s licence or about $600 a month. D2 was operating BFF S
from the Mong Kok premises as an employment agency separately from
T T
D1. It is simply inherently improbable that D2 who was operating a
U U
23
V V
由此
A A
business separate from D1 would not have access to premises. How then
B B
could D2 conduct her business if D1 was not there?
C C
100. Further incredibility is of D2’s account that she had no
D D
income from her business at BFF since she moved to the Mong Kok
E
address. Why then would she pay $600 a month or $7,200 a year and a E
$2,000 renewal of licence fee until August 2012. It is beyond belief that
F F
with no income from her business she would continue to pay those costs.
G G
101. More implausible is that although D2 wanted her licence
H back from the Mong Kok office she made no attempt to retrieve it by H
going up to the office at all after her dispute with D1. There was no
I I
evidence that she was prevented from going to the Mong Kok office. It
J was unbelievable that only after an unknown Filipina called her and J
asked her to go to the office on 22 August because D1 needed help did
K K
she decide to go to the office to answer D1’s call for help and at the same
L time think only then, to retrieve her licence some three weeks after telling L
D1 she was furious with her and wanted the return of her licence.
M M
N 102. Apart from the very absurd and far-fetched meanings D2 N
gave to the express unambiguous answers in the record of interviews, I
O O
rejected D2’s oral evidence and case, which attempted to show she was
P not involved in the offences. Despite giving myself the requisite P
warnings of her clear record as directed in the cases of R v Berrada and
Q Q
Vye I found D2 was not a credible witness.
R R
103. I have warned myself that D1 was a tainted witness with a
S vested interest and a purpose to serve. She had a motive for tailoring her S
evidence against D2 to get a reduced sentence. She was granted
T T
immunity from prosecution under charge 4. I have approached her
U U
24
V V
由此
A A
evidence with caution. D1 was not challenged expressly in cross-
B B
examination as to any inconsistent statements made by her in any of the
C previous statements. Despite strenuous and detailed cross-examination C
D1 was not shaken. Taking into consideration all the above factors, D1
D D
was, I found an honest and reliable witness.
E E
104. Conclusion
F F
The evidence against D2 was overwhelming. D2 had
G employed D1 to boost her employment agency business. She knew at the G
time that D1 was a domestic helper and it was illegal to do so. D2
H H
conspired with D1 to dishonestly submit false documents and make false
I I
representations to the Immigration Department on the pretence that
J
applicants would work as domestic helpers when there was never an J
intention of them working as one. In facilitating these bogus applications
K K
D2 received some sums of over HK$30,000.
L L
105. I was satisfied on all the evidence that the prosecution had
M M
proved beyond all reasonable doubt that D2 was guilty of the charges 2, 3
N and 4. D2 is convicted of those charges accordingly. N
O O
P P
Q Q
(S. D’Almada Remedios)
District Judge
R R
Mr. David Tolliday-Wright, Counsel on fiat, for Prosecution
S S
Mr. James Collins instructed by Messrs. Yaddy Yeung & Co. (DLA) for
T the 2nd defendant. T
U U
25
V V
由此
A A
DCCC 1167/2011
B B
IN THE DISTRICT COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
CRIMINAL CASE NO. 1167 OF 2011
D D
____________
E E
HKSAR
F Against F
G G
st
MENDOZA Zenaida Tabilog 1 Defendant
H ROMERO Jay Nalyn Uy 2nd Defendant H
I ____________ I
J Coram: H.H. Judge S. D’Almada Remedios in Court J
Dates of Hearing: - 2-4, 7-10 May 2012
K K
Date of Verdict: - 18 May 2012
L Offences: (2) Aiding, abetting, counselling or procuring breach of L
condition of stay by another person (協助及教唆他人違反
M 逗留條件) M
(3) Conspiracy to defraud (串謀詐騙)
N (4) Conspiracy to make or cause to be made false N
statements or representations to immigration officers
O lawfully acting under Part III of the Immigration Ordinance O
(串謀向人民入境事務處職員作虛假聲明)
P P
Q
REASONS FOR VERDICT FOR D2 Q
R R
1. This trial is only concerned with the determination of
S
whether the prosecution have proved beyond reasonable doubt that the 2nd S
defendant (D2) is guilty of the offences, she having pleaded not guilty to
T T
all charges. D1 has admitted the commission of the offences.
U U
1
V V
由此
A A
2. Overview
B B
The offences allege that the 1st and 2nd defendants (D1 and
C D2) between the months of March 2011 to August 2011 conspired C
together and did submit false documents and made false representations
D D
to immigration officers of the Immigration Department in order to
E facilitate the processing of false domestic helper contracts with bogus E
employers. At the material time D1 was in breach of her condition of
F F
stay in Hong Kong as she was only allowed employment as a domestic
G helper when in fact she worked as an employment agent. D2 was the sole G
proprietor of the employment agency whose address was used on the
H H
applications and who employed D1, thus aiding and abetting her breach
I I
of condition of stay.
J J
3. The facts
K K
Between September 2010 to July 2011 the Immigration
L
Department received 26 separate sets of applications for employment of L
26 domestic helpers from abroad made by the employer and the
M M
respective visa applications by the domestic helper. The supporting
N documents from the employers such as proof of income and address were N
false documents. The prospective employers named on the forms had no
O O
knowledge of the respective applications. It was not intended that the
P domestic helpers would work for those employers. P
Q Q
4. All 26 bogus employers or “sponsors” as was the jargon,
R submitted the same correspondence address on the application form R
namely Room 710C, Ho King Commercial Centre, 216 Fa Yuen Street,
S S
Mong Kok, Kowloon (the Mong Kok address/office).
T T
U U
2
V V
由此
A A
5. From September 2010 to August 2011, 13 of the 26
B B
applicants were granted visas to work in Hong Kong under their
C employment contracts unbeknown to the immigrations officers that they C
were bogus contracts or false documents. Those applicants were listed in
D D
Appendix A. The other half were refused visas, as on those applications
E the immigration officers noticed the falsity of the documents. Those E
applicants were listed in Appendix B.
F F
G 6. Immigration officers raided the Mong Kok address on 22 G
August 2011. At that time D1 was in the office. D2 turned up at the
H H
premises sometime after the initial entry by the immigration officers.
I Both the defendants were arrested and cautioned. Upon search of the I
Mong Kok office photocopies of the documents in respect of the 26
J J
bogus applications were found. D1 produced the key to one of the filing
K cabinets in the office where some of the documents were found. K
L 7. The defendants are Filipina women. D1 was at all material L
times in Hong Kong under a domestic helper visa. D1’s status as a
M M
domestic helper was granted to her since December 2005 and continued
N until January 2013. D2 is a permanent resident. She acquired her N
residency through her parents as they are Hong Kong permanent residents.
O O
P
8. Despite D1’s condition of stay imposed upon her by the P
Q
Immigration Department that she only work in Hong Kong as a domestic Q
helper she breached her condition of stay as she and D2 worked as
R R
employment agents principally for overseas Filipina domestic helpers.
S S
9. From April 2011 the Mong Kok address was the registered
T address of D2’s employment agency. D2 was the sole proprietor of an T
employment agency known as BFF Employment Services and Trading
U U
3
V V
由此
A A
Company (BFF). Its employment agency licence was granted to D2.
B B
BFF was the only employment agency registered at the Mong Kok
C address from April 2011. The Mong Kok address was used as the C
correspondence address for the 26 bogus applications to the Immigration
D D
Department.
E E
10. Background of EZM and BFF employment agencies
F F
From about September 2006 D1 was the registered partner of
G the employment agency E.Z.M. Overseas Employment and Trade Centre G
(EZM). EZM was granted a licence annually to operate as an
H H
employment agency from 29 September 2006 until 10 September 2010.
I I
Its registered offices were all along at the Mong Kok address. D1 worked
J
principally as an employment agent of EZM since September 2006. J
K K
11. After the expiry of EZM’s licence in September 2010. D1
L
continued to rent the office premises at Mong Kok. L
M M
12. D2’s employment agency BFF’s licence was first issued on
N 24 August 2009. BFF’s registered address was at premises in Kimberly N
Road in Tsim Sha Tsui (the Tsim Sha Tsui address). The Commissioner
O O
of Labour issued the registered change of address to the Mong Kok office
P for BFF on 26 April 2011. BFF’s licence was valid at all material times P
and valid until 23 August 2012.
Q Q
13. When BFF changed its address to Mong Kok, EZM’s licence
R R
had expired some seven months earlier in September 2010.
S S
14. Of the 26 application forms and employment contracts, D1
T T
filled in all of the particulars except for the signature of the domestic
U U
4
V V
由此
A A
helper and the employer. Thereafter she asked one Ms Helen Koon to
B B
take the application forms and supporting documents to be submitted to
C the Immigration Department. C
D D
15. After D2’s arrest and when being interviewed by the
E
immigration officers under caution on the day of her arrest and the day E
following, D2 had made voluntarily statements in two record of
F F
interviews which contained admissions to some of the offences.
G G
16. All of the above facts were not in dispute.
H H
17. The present trial and charges
I I
As a result of the above facts and admissions made by the
J defendants under caution the defendants were charged jointly and J
severally with the four offences on the charge sheet.
K K
L 18. D1’s charges L
D1 was charged with 3 offences. D1 pleaded guilty to two
M M
charges. The remaining charge was left on the court file and D1 was
N granted immunity under that charge (charge 4). N
O O
19. D1 admitted that by working as an employment agent she
P P
breached her condition of stay (charge 1). She admitted that she
Q
conspired with D2 to submit false documents in support of the 26 Q
applications made to the Immigration Department (charge 3).
R R
20. D1 gave evidence for the prosecution as to her and D2’s
S S
involvement in the commission of the offences. Principally that there
T was an agreement between herself and D2 to submit false documents and T
make false representations to immigration officers to facilitate the bogus
U U
5
V V
由此
A A
employment contracts for the domestic helpers. D1 is waiting to be
B B
sentenced after the trial of D2 on the charges she had admitted.
C C
21. D2’s charges
D D
D2 was charged with three offences. D2 has pleaded not
E guilty to charges 2, 3 and 4. E
F F
22. In short, charge 2 alleges that D2 aided and abetted D1 to
G breach her condition of stay. D2 is jointly charged with D1 in charges 3 G
and 4 of conspiracy to defraud the immigration officers by dishonestly
H H
submitting false documents (charge 3) and conspiracy to knowingly make
I I
false representations to immigrations officers (charge 4).
J J
23. D2’s case
K K
D2 denied she was a party to any agreement with D1 in
L
submitting false documents or making false representations to the L
Immigration Department. It was D2’s case that although her agency BFF
M M
had its offices in Mong Kok and was the only registered employment
N agency there at the material times, it was her belief that EZM agency was N
still operating there as it had done so for the past years.
O O
P 24. D2’s belief was that the Mong Kok premises were the P
registered address of both EZM and BFF and not exclusively that of BFF.
Q Q
R 25. Consequentially all the 26 application forms submitted by D1 R
did not involve her and she did not conspire with D1 to submit the bogus
S S
applications.
T T
U U
6
V V
由此
A A
26. It was D2’s case that D1 worked for D1’s own employment
B B
agency EZM whilst D2 carried out her business under BFF at the Mong
C Kok office exclusively. C
D D
27. D2 denies she employed D1 to work for BFF or that she had
E any knowledge that D1 was a domestic helper at any time. It was D2’s E
case that she believed that D1 was either a permanent resident or had
F F
permission to work as an employment agent as when D2 met D1 in about
G 2002 D1 was working as an employment agent then and continued to do G
so all along.
H H
I 28. D2 only came to know that D1 was a domestic helper when I
PW3 the immigration assistant told her on the 22 August 2011 at the
J J
Mong Kok office when the immigration officers conducted their raid.
K K
29. Although the records of interviews were voluntarily made
L and were an accurate record of the answers given by D2, D2 said that the L
answers were not what she had intended or meant to say. She was not
M M
feeling well at the time and for that reason said things she did not mean to
N say. N
O O
30. Issues
P P
Under charge 2 the issues are: -
Q
(a) whether D2 employed D1 and Q
(b) if D2 did employ D1, did D2 know at the time of her
R R
employment of D1 that D1 was a domestic helper and she
S
was not permitted to carry out any other work other than S
as a domestic helper?
T T
U U
7
V V
由此
A A
31. The issues in respect to charges 3 and 4 are whether: -
B B
(a) At the material times did D2 know that D1 was submitting
C false documents in support of the applications and making false C
representations to the immigration officers,
D D
(b) If D2 did know,
E (i) was there an agreement between D1 and D2 that they E
would submit false documents to the immigration
F F
officers for the employment of domestic helpers
G (charge 3) and G
(ii) was there an agreement between D1 and D2 to make
H H
false representations to the immigrations officers to
I I
facilitate domestic helpers contracts knowing that the
J
applications contained bogus employers (Charge 4). J
K K
32. D2’s Record of Interviews (exhibit P61 and P62)
L
(a) was D2 feeling unwell during the interviews, L
(b) if D2 was feeling unwell did she as a result give the
M M
answers she did as she was not concentrating,
N (c) were the answers in the two record of interviews what D2 N
had meant to say and
O O
(d) if the answers were what D2 meant to say were they
P truthful answers? P
Q Q
33. The witnesses
R The prosecution called three witnesses. PW1 was an R
immigration officer who explained the procedures of and supporting
S S
documents required for an application for employment of a domestic
T helper and a visa. He was the officer who had noticed the falsity in some T
of the documents such as the incorrect tax year. PW2 was the co-accused
U U
8
V V
由此
A A
D1. PW3 was an immigration assistant who was tendered for cross-
B B
examination. PW3 was present when D1 and D2 were arrested for the
C offences on 22 August 2010 at the Mong Kok office. C
D D
34. The defendant elected to give evidence she called no defence
E witnesses. E
F F
35. The evidence
G A large portion of the prosecution case was admitted by D2. G
There were four sets of admitted facts marked as PA1-PA4. Two
H H
voluntary and accurate records of interview (exhibit P61 and P62) made
I I
by D2 were admitted into evidence. The majority of the salient facts have
J
been mentioned above. J
K K
36. The prosecution case
L
The principal witness for the prosecution was D1. The L
prosecution also relied on admissions in the records of interview. The
M M
immigration officer PW1’s evidence was not challenged. Nothing turned
N on PW3’s evidence. N
O O
37. D1’s (PW2’s) evidence
P D1 is 52 years of age. At the time she was giving evidence P
she was remanded in Tai Lam Women’s Detention Centre awaiting
Q Q
sentence for the two charges she had pleaded guilty to.
R R
38. D1 met D2 in about 2001 in Hong Kong through the
S S
introduction of mutual friends. They maintained contact by phone but not
T all the time. D1 remembered that D2 had contacted her before D2 T
applied for BFF’s employment agency licence in 2009. After the
U U
9
V V
由此
A A
commencement of BFF’s operation, D2 would often make telephone calls
B B
to D1 to ask D1 advice on how to handle certain employment applications.
C C
39. D1’s testimony was that before EZM’s licence had expired in
D D
September 2010 she was in communication with D2 regularly. D1 and
E D2 had agreed that when EZM’s licence expired D1 would transfer all E
her clients and networks to D2 and D2 would then transfer BFF’s licence
F F
to the Mong Kok address immediately and D2 would employ D1 to work
G for BFF. G
H H
40. However despite D2’s agreement that D2 would move BFF
I to Mong Kok in or about late September 2010 D2 did not move BFF to I
the Mong Kok offices until about late February or early March 2011. D1
J J
said she did not know why it took D2 so long to transfer BFF’s business
K to Mong Kok as EZM’s licence expired on 28 September 2010. K
L 41. However D1 said in between the expiry of EZM’s licence L
and BFF moving to Mong Kok she and D2 had discussions about the
M M
transfer of the rental deposit to D2 which D1 had already paid on the
N Mong Kok premises. However as D2 did not give D1 the rental deposit, N
D1 continued to occupy the offices at Mong Kok. After BFF moved to
O O
Mong Kok, D2 however paid for the rent and expenses but the utility bills
P
and the lease remained in D1’s name. P
Q Q
R 42. D1 was adamant that after EZM’s licence expired in R
September 2010 D1 did not make any fresh or new domestic helper
S S
employment applications to the Immigration Department. D1 said that as
T EZM did not have a licence it ceased its business operations. D1 clarified T
however that even after the expiry of EZM’s licence D1 did and was
U U
10
V V
由此
A A
required to follow up on applications that had already been filed with the
B B
Immigration Department prior to expiry of EZM’s licence.
C C
43. D1’s evidence was that all new applications were only
D D
submitted by D1 to the Immigration Department after BFF moved to the
E
Mong Kok premises. Those applications were those as listed in E
Appendix A and B except the one listed as A4 in Appendix A.
F F
44. D1 recalled that it was sometime in late February or early
G G
March 2011 that D2 moved BFF to the Mong Kok offices. D2 had a key
H to the Mong Kok offices though D2 was not there regularly. H
I I
45. Once BFF had moved to the Mong Kok address D2 hired D1
J to work for her at BFF as an employment agent. D1 regarded D2 as her J
boss. D1’s evidence was that D2 knew all along that D1 was a domestic
K K
helper here in Hong Kong.
L L
46. Whilst D1 was working for D2 she made both false and
M M
genuine applications for domestic helpers. She and D2 knew of the false
N information in regard to the bogus 25 applications (except A4 which was N
made in September 2010). She and D2 knowingly commenced making
O O
these bogus applications in March 2011. D1 did not know at the time
P
A4’s application was made that it was false. P
Q Q
47. D1 said that she and D2 knowingly became involved and
R agreed to submit bogus applications to the Immigration Department after R
she, D1 met a man known only to her as Mr. Sze in March 2011. D1
S S
came to know Mr Sze as he just happened to walk into the BFF agency at
T Mong Kok. She did not know Mr Sze before she worked for D2 at BFF. T
U U
11
V V
由此
A A
48. Thereafter Mr Sze supplied D1 with all the details of the
B B
bogus employers and provided her with the false documents (proof of
C income and address documents). D1 and D2 used the jargon of C
“sponsors” to refer to the bogus employers. The proposed domestic
D D
helpers would either be introduced by herself or D2, some however
E would just walk into the agency in person and arrangements would be E
made for them.
F F
G 49. Of the domestic helper applicants who made bogus G
applications D1 herself introduced two of her relatives (in Appendix A,
H H
A3 and Appendix B, B8) and D2 introduced seven.
I I
50. D1 pointed out that the seven applicants introduced by D2
J were those as named in Appendix B listed under B1, 2, 3, 6, 7, 9 and 10. J
D2 had specifically told D1 that she had asked the girls named in B1 and
K K
B2 to look for D1 so that D1 could find them sponsors.
L L
51. D1 herself filled in all of the particulars on the application
M M
forms and the contract except for the signatures of the domestic helper
N and the sponsor. The sponsor’s signature would be on the blank form N
given to her by Mr Sze and Mr Sze would provide all the other particulars
O O
of the employers. After the forms were ready to be submitted she asked
P one Ms Helen Koon who was a part-time employee of D2’s to take the P
application forms and supporting documents to be submitted to the
Q Q
Immigration Department. D2 was not involved in the paper work or
R filling out of the forms. R
S 52. The applicant domestic helpers paid a fee for their bogus S
applications. This was about $25,000 per application. D1 said the
T T
applicants paid in cash. The money was paid once an application was
U U
12
V V
由此
A A
submitted to the Immigration Department. Payment was not dependent
B B
on whether an application was successful. The money was paid to D1,
C D2 or Helen Koon. Thereafter the money was shared. C
D D
53. The fee from each applicant was distributed by giving about
E
$15-18,000 to Mr Sze, $2,000 to D1 and D2 or BFF would get the E
remainder of about $3,000-$5,000 of which some would be used to
F F
defray expenses. D1 would usually hand the money to Mr Sze but when
G D1 was in the Philippines Helen Koon handed the money to Mr Sze. G
H 54. D1 estimated that she earned about $20,000 and D2 more H
than $30,000 from these false applications.
I I
J 55. D1 said that when BFF moved to the Mong Kok address no J
furniture or office equipment was taken there by D2 as D1 agree to leave
K K
all her equipment there as it was in good condition.
L L
56. D2’s evidence
M M
D2 elected to give evidence. She is aged 30. She has a clear
N record. Her oral evidence was at odds and in direct conflict from the N
admissions and some of the statements contained in the two records of
O O
interviews made to the immigration officer in exhibits P61 and P62.
P P
57. D2 did not challenge the voluntariness or importantly the
Q Q
accuracy of the statements made in the record of interview. It was D2’s
R evidence that her mind was not clear because of her medical condition. R
D2’s evidence was that she was not concentrating and came out with
S S
answers that she did not mean.
T T
U U
13
V V
由此
A A
58. During the interview she had very high blood pressure. She
B B
felt that she was about to faint, D2 however never complained about her
C condition to the immigration officers despite the opportunity to do so. C
D D
59. D2 meticulously went through each answer that was
E
predominantly an admission. She did not challenge the accuracy but E
explained that despite what was recorded she had meant something
F F
entirely different from what was stated.
G G
60. It was D2’s evidence that she alone worked for BFF, there
H was no other employee. She had met D1 in about December 2002. D2 H
was introduced to D1 by her friend, at that time D2 knew that D1 worked
I I
in an agency but D2 did not know the name of the agency.
J J
61. D2 only renewed contact with D1 in about December 2010
K K
when she needed to ask D1 advice about some applications for domestic
L
helpers. In December 2010 D2 went to D1’s office in Mong Kok and L
collected some forms. At that time D1 was running an employment
M M
agency there. Displayed on the main door were the words EZM Overseas.
N Inside the office D1 displayed EZM’s licence and business registration. N
There were many people there and EZM was in operation. Notably after
O O
the expiry of EZM’s licence.
P P
62. After D2’s encounter with D1 in December 2010, D2
Q maintained contact with D1 quite regularly. Nothing however was Q
related to business.
R R
S
63. In or about the first week of March 2011 out of the blue D2 S
was told by her landlord to vacate the offices of BFF at Tsim Sha Tsui as
T T
he needed the office space urgently.
U U
14
V V
由此
A A
B 64. D2 then called D1 to ask her how to cancel her employment B
C
agency licence as she no longer had office premises. D1 suggested to D2
C
that D2 could share EZM’s office in Mong Kok. D2 asked her about the
D D
payment of rent and D1 said that it would be very low. D1 said D2 could
E
pay $20 a day as D2 would only hang up her licence at the premises. D2 E
accepted D1’s arrangement and both she and D1 agreed that they would
F F
work separately from each other operating their own respective agencies,
G i.e. EZM and BFF. G
H 65. D2 notified the Labour Department of the necessary change H
of address from the Tsim Sha Tsui to the Mong Kok address in or about
I I
March 2011. The Commissioner of Labour issued the registration of
J change of particulars on the licence on 21 April 2011 (exhibit P70). J
K K
66. D2 moved BFF to the Mong Kok address in or about the end
L of April 2011 or the first week of May 2011. D2 displayed BFF’s licence L
in the Mong Kok office. At that time as D2 did not have a frame D1 took
M M
out EZM’s licence from the frame and then gave the frame to D2 to place
N BFF’s licence. At that time D2 did not examine EZM’s licence, she N
believed it was still valid. She believed EZM was still in operation and
O O
D1 was working under EZM’s licence.
P P
67. D2 did not employ D1. D2 did not know that D1 was a
Q Q
domestic helper as since she had known D1 she knew that D1 worked as
R an employment agent in an employment agency. D2 had not hired Helen R
Koon to work for her but she had introduced Helen to D1, and D1 had
S S
hired Helen Koon.
T T
U U
15
V V
由此
A A
68. D2 did not know anything about the 26 false applications that
B B
D1 made to the Immigration Department when they were made. She
C never introduced any intended domestic helpers to D1 to look for C
sponsors or bogus employers. D2 did not know that D1 was providing
D D
false documents or that the employers were bogus.
E E
69. D2 came to know only in July 2011 that D1 was arranging
F F
bogus applications. Her knowledge came about because D1 had told her.
G She was furious with D1 and told D1 she was taking her licence and G
office away from the Mong Kok office.
H H
70. It was D2’s case that she came to know about the bogus
I I
applications because she had assisted D1 with one of D1’s applicants
J enquiries when D1 was away in the Philippines in July 2011. D1 had J
called D2 in Hong Kong from the Philippines to ask D2 to make
K K
enquiries about two applications related to one named Niocina and
L Solasco named and listed in Appendix B as B2 and B5 as D1 was unable L
to contact Helen Koon. D2 tried to contact Helen Koon herself but was
M M
also unable to do so. D2 therefore agreed to assist D1 as Helen was
N unreachable. N
O O
71. D1 told D2 to collect some documents from the Mong Kok
P P
office however as D2 rarely went to the Mong Kok office D2 did not
Q
have the key to the Mong Kok office. D1 therefore arranged for D2 to Q
collect a key for the Mong Kok office from D1’s sister who was in Hong
R R
Kong. D2 told her where to find the documents in the office.
S S
72. D2 then went and collected the documents with the key
T T
provided by D1’s sister. After that D2 went to the Immigration
U U
16
V V
由此
A A
Department to make enquiries about the visas of those two applicants.
B B
D2 was told that the visas were refused. However the immigration
C officer refused to tell her the reasons for refusal as they were confidential. C
D D
73. After D1 returned from the Philippines, D2 had a telephone
E
conversation with D1. Out of curiosity D2 asked D1 about the refused E
visas. D1 told D2 that one of the applicants Niocina was only sponsored.
F F
D2 knew and understood that sponsored meant the employer just signed
G the contract but that the domestic helper did not actually work with the G
employer. D1 and D2 then argued. D2 said that before moving to the
H H
Mong Kok address she told D1 that D1’s agency must not do anything
I illegal. D2 expressed her strong disapproval of the bogus applications I
and indicated to D1 that she would withdraw her licence from the Mong
J J
Kok office. Then D1 retorted by saying why should D2 be angry when it
K was not D2’s business but her (D1’s) business and that D1 would be K
responsible. Then D1 cut the phone line.
L L
74. D2 called D1 again. D2 told D1 that she was going to the
M M
office to collect the licence and BR however D1 swore at her and cut the
N telephone line. D2 called D1 repeatedly thereafter but D1 refused to N
answer her call.
O O
P 75. Although D2 wanted her licence back, D2 did not go to the P
office again until the day of the raid on 22 August. At about 4.30 pm that
Q Q
day D2 received a call from an unknown Filipina asking her to go the
R Mong Kok office. That female told her that D1 needed her help. D2 R
thought it was an opportune time to retrieve her licence from D1 so she
S S
went up to the Mong Kok offices.
T T
U U
17
V V
由此
A A
76. When D2 arrived at the office at about 5.00 pm she was
B B
surprised as there were many people there. D2 entered and asked what
C the problem was. They took away D2’s identity card and asked D2 if she C
was the licensee of the office. D2 said it was her licence.
D D
E
77. At the office PW3 told D2 that D1 was a domestic helper E
however D2 replied that she had no idea that D1 was a domestic helper.
F F
PW3 then angrily shouted at D2 saying that D2 hired D1 to work in the
G office and that D2 knew D1 was a domestic helper. D2 again reiterated G
she did not know D1 was and denied that she had hired D1.
H H
78. D2 was then arrested and made voluntarily records of
I I
interviews under caution on the day of her arrest and the day following.
J J
79. D2 said that she had not received any payment or
K K
commissions from D1 in respect to any of the bogus applications. She
L had received no income at all from BFF’s business since moving to the L
Mong Kok office.
M M
N 80. As to why BFF’s licence was issued and renewed as of 24 N
August 2011 and valid to 23 August 2012 D2’s evidence was that the
O O
licence renewal procedure for BFF was initiated in June 2011 before D2
P
found out about D1’s bogus application and that Helen Koon had assisted P
Q
her by paying the fee. It was D2’s evidence that the renewal of BFF’s Q
licence was already well underway before D1’s disclosure concerning the
R R
bogus contract of Niocina and therefore a new licence was issued.
S S
T T
U U
18
V V
由此
A A
B 81. PW3’s evidence B
C
PW3 stated in her evidence that she did not have any
C
memory of speaking to D2 however what she did know was that she
D D
would never shout at any suspect or arrested person.
E E
82. Analysis of evidence
F F
From the record of interviews it can be seen that D2 read the
G questions and answers herself and had it read over to her. She agreed it G
was an accurate record of the answers she had provided. During the
H H
interview exhibited at P62 she had a 40-minute rest and meal break at
I 2010 hours and later in the interview she was given a break for about 15 I
minutes. In P61 D2 was asked if she wanted a rest and her answer was
J J
no. The tone of the interviews clearly provides for D2 to state her
K condition or requests and at no time did D2 mention she was feeling K
unwell or that she was feeling faint. I do not believe she was feeling
L L
unwell or faint at the time. She was given ample time to rest.
M M
83. There are clear and unequivocal admissions to charge 2 made
N N
by D2. Much of those admissions are in direct support of D1’s evidence.
O They are in the 1st record of interview Exhibit P61 at answers A8, A9, O
A10, A11, A12 and A13 and in the 2nd record of interview Exhibit P62 at
P P
answers A8, A9. I found that those answers were truthful answers given
Q by D2. Q
R R
84. Those answers show that D2 admitted that she had hired D1
S as one of the persons in charge at her employment agency BFF at the S
Mong Kok address. D2 knew that D1 was a domestic helper in Hong
T T
Kong and that D1 was not permitted to work other than as a domestic
U U
19
V V
由此
A A
helper and was thus working illegally for D2. D2 had asked D1 for D1’s
B B
assistance as D2 was losing money operating BFF. D1 then told D2 to
C move her agency to the Mong Kok address and D1 told D2 that she could C
introduce a lot of domestic helpers to D2 as she had a lot of connections
D D
in Hong Kong. D2 therefore moved BFF to the Mong Kok address so D1
E could assist her to earn more money although she knew it was illegal to E
employ a domestic helper however they did not sign an employment
F F
contract so others would not know that D2 employed D1. D2 seldom
G went to the office but D1 went daily to entertain the customers to process G
employment applications and to pay all the bills of the agency. D2 would
H H
pay D1 HK$20 a day as requested by D1 as her daily travelling allowance.
I I
J
85. D2’s viva voce evidence of giving answers in the records of J
interview she did not mean was farcical and fanciful unworthy of any
K K
belief. The questions were simple and the answers were direct and
L
unequivocal. By and large D2 tried without success to extract herself L
from the admissions she had made.
M M
86. D2’s viva voce evidence was in sharp contrast to the
N N
admissions she made in the records of interviews. A few examples are
O that in her oral evidence D2 said that she only learnt D1 was a domestic O
helper from PW3 on the day of her arrest on 22 August 2010. It is
P P
beyond belief that if that were the truth that D2 did not express that in the
Q interview or answer the questions put to her in that context but expressed Q
the answers in the way she did (see paras 83 and 84).
R R
S
87. In the first record of interview exhibit P61 at Q20 D2 was S
asked if there were other staff working at BFF. D2 answered that there
T T
was a part-time called Helen Poon who is her friend. She would pay
U U
20
V V
由此
A A
HK$200 each time she would instruct Helen to take the documents to go
B B
to the Immigration Department. In her oral evidence D2 denied
C employing Helen. Again it makes no sense at all that D2 would state the C
complete opposite in the record of interview if the truth were that she did
D D
not employ Helen.
E E
88. As can be seen in D2’s answers in the record of interview the
F F
answers are detailed and shows clearly that D2 knew of D1’s status at the
G time she hired D1 and for that reason D2 deliberately did not have a G
written contract of employment so as to hide the fact.
H H
I 89. The tenor of the 2nd record of interview exhibit P62 shows I
that D2 knew that D1 made bogus contracts with an old Chinese man.
J J
Although it is seen in that record of interview that D2 tries to distance
K herself from D1 and the old man and that she was not party to the bogus K
applications it is clear in answer 17 that D2 knew there was something
L L
different about the applications made with the old man and D2 received
M payment from the old man answer 30. M
N 90. D2 said in answer 17 that the commission fees that she N
received from the old man were higher then she would get from other
O O
applications. She could only share several hundred dollars from other
P P
applications whilst with the old man she would be paid $2,000 and the
Q
company will be paid $3,000. Q
R 91. Moreover D2 was asked at Question 30 of the 2 nd record of R
interview how much total payment did she receive in commission from
S S
the old man. Her answer was that that she received HK$12,000 in all for
T four times. She first received $6,000 on May 2011, then $2,000 each T
month in June, July and August 2011 respectively. These answers are
U U
21
V V
由此
A A
again in stark contrast to D2’s oral evidence that she did not receive any
B B
commission or payment for the bogus contracts and any income at all
C from her own business at BFF after moving to the Mong Kok office. C
D D
92. D2’s oral evidence was that she paid D1 $20 per day for
E
displaying her licence in the Mong Kok office. It was D1’s evidence that E
the $20 was intended as a travelling allowance but that eventually D2
F F
never paid her for that. D1 vigorously denied in cross-examination that
G there was an agreement between them that D2 was to pay $20 a day to G
display her licence.
H H
93. Nowhere in the two records of interview does D2 ever
I I
mention the $20 a day licence display charge. She does however mention
J a $20 a day transportation fee. It is no coincidence that the $20 is J
mentioned as the transportation fee because I found, that is the truth,
K K
moreover it supports D1’s evidence. D2’s evidence of the $20 being a
L licence display fee is a fabrication. L
M M
94. Mr Collins submitted that there is clear evidence that D1 was
N involved in these bogus applications long before March 2011 when BFF N
had moved to the Mong Kok address. That is evidence of D1 not telling
O O
the truth that the bogus applications started with meeting Mr Sze in
P March 2011 and with the agreement of D2 and that D2 employed D1. P
Q 95. Mr Collins refers to the one of the twenty-six applications Q
made in September 2010 Appendix A (A4) six months before BFF or D2
R R
was at the Mong Kok office. It was not challenged that twenty-five of the
S twenty-six applications were made from March 2011. S
T T
U U
22
V V
由此
A A
96. Mr Collins submitted that as a bogus application was made in
B B
September 2010 D2 was obviously not involved as D2 had not moved to
C the Mong Kok premises and it was before the alleged agreement in C
September between D1 and D2 to move BFF to the Mong Kok address.
D D
As D1 was dealing with bogus employers before D2 moved to Mong Kok
E it supports D2’s case that D2 was not party to any agreement either then E
or from March 2011.
F F
G 97. As to the applicant in Appendix A4, D1’s evidence was that G
she processed the September 2010 application but she did not know at
H H
that time that the application made was a bogus one. It was D1’s
I evidence, which, I accept that the applicant’s sister brought the papers to I
J
her as the sister worked in Hong Kong, and she was asked to process the J
papers for them, which she believed were genuine.
K K
98. D1’s evidence that she only met Mr Sze in March 2011 and
L L
from then on the bogus applications were made are supported from the
M flurry of applications made from March 2011 and thereafter. All but one M
of the 26 applications listed in Appendix A and Appendix B were made
N N
between March to July 2011. I believe D1’s evidence that she only
O knowingly made the bogus applications in agreement with D2 only when O
she commenced working at BFF and was employed by D2 from March
P P
2011.
Q Q
99. I found D2’s account of not having a key to the Mong Kok
R R
premises incredulous. On D2’s account she was paying $20 a day to D1
S
to display BFF’s licence or about $600 a month. D2 was operating BFF S
from the Mong Kok premises as an employment agency separately from
T T
D1. It is simply inherently improbable that D2 who was operating a
U U
23
V V
由此
A A
business separate from D1 would not have access to premises. How then
B B
could D2 conduct her business if D1 was not there?
C C
100. Further incredibility is of D2’s account that she had no
D D
income from her business at BFF since she moved to the Mong Kok
E
address. Why then would she pay $600 a month or $7,200 a year and a E
$2,000 renewal of licence fee until August 2012. It is beyond belief that
F F
with no income from her business she would continue to pay those costs.
G G
101. More implausible is that although D2 wanted her licence
H back from the Mong Kok office she made no attempt to retrieve it by H
going up to the office at all after her dispute with D1. There was no
I I
evidence that she was prevented from going to the Mong Kok office. It
J was unbelievable that only after an unknown Filipina called her and J
asked her to go to the office on 22 August because D1 needed help did
K K
she decide to go to the office to answer D1’s call for help and at the same
L time think only then, to retrieve her licence some three weeks after telling L
D1 she was furious with her and wanted the return of her licence.
M M
N 102. Apart from the very absurd and far-fetched meanings D2 N
gave to the express unambiguous answers in the record of interviews, I
O O
rejected D2’s oral evidence and case, which attempted to show she was
P not involved in the offences. Despite giving myself the requisite P
warnings of her clear record as directed in the cases of R v Berrada and
Q Q
Vye I found D2 was not a credible witness.
R R
103. I have warned myself that D1 was a tainted witness with a
S vested interest and a purpose to serve. She had a motive for tailoring her S
evidence against D2 to get a reduced sentence. She was granted
T T
immunity from prosecution under charge 4. I have approached her
U U
24
V V
由此
A A
evidence with caution. D1 was not challenged expressly in cross-
B B
examination as to any inconsistent statements made by her in any of the
C previous statements. Despite strenuous and detailed cross-examination C
D1 was not shaken. Taking into consideration all the above factors, D1
D D
was, I found an honest and reliable witness.
E E
104. Conclusion
F F
The evidence against D2 was overwhelming. D2 had
G employed D1 to boost her employment agency business. She knew at the G
time that D1 was a domestic helper and it was illegal to do so. D2
H H
conspired with D1 to dishonestly submit false documents and make false
I I
representations to the Immigration Department on the pretence that
J
applicants would work as domestic helpers when there was never an J
intention of them working as one. In facilitating these bogus applications
K K
D2 received some sums of over HK$30,000.
L L
105. I was satisfied on all the evidence that the prosecution had
M M
proved beyond all reasonable doubt that D2 was guilty of the charges 2, 3
N and 4. D2 is convicted of those charges accordingly. N
O O
P P
Q Q
(S. D’Almada Remedios)
District Judge
R R
Mr. David Tolliday-Wright, Counsel on fiat, for Prosecution
S S
Mr. James Collins instructed by Messrs. Yaddy Yeung & Co. (DLA) for
T the 2nd defendant. T
U U
25
V V