區域法院（刑事）Deputy District Judge Louisa Lai23/7/2019[2019] HKDC 1004
DCCC1168/2018
A A
B B
DCCC 1168/2018
C [2019] HKDC 1004 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1168 OF 2018
F F
G ---------------------------- G
HKSAR
H H
v
I OSIAS MYRNA Q I
----------------------------
J J
K Before: Deputy District Judge Louisa Lai K
Date: 24 July 2019
L L
Present: Mr Lam Shun Chiu, Counsel on fiat, for HKSAR
M Mr James HM McGowan, instructed by Yu Hung & Co, for M
the defendant
N N
Offence: [1] - [8], [13] Conspiracy to defraud（串謀詐騙）
O O
[9], [14] - [15] Using copies of false instruments（使用虛假
P 文件的副本） P
[10] - [12], [16] & [17] Using a copy of a false instrument（使
Q Q
用虛假文書的副本）
R R
[18] Possessing false instruments（管有虛假文書）
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. The defendant was charged with 9 charges of “Conspiracy to E
defraud”, contrary to Common Law and sections 2(3) and 4(2) of the
F F
Criminal Jurisdiction Ordinance, Cap 461 and punishable under section
G 159C(6) of the Crimes Ordinance, Cap 200; 8 charges of “Using copies/a G
copy of false instrument(s)”, contrary to section 74 of the Crimes
H H
Ordinance, Cap 200 and 1 charge of “ Possessing false instruments,
I contrary to section 75(1) of the Crimes Ordinance, Cap 200. I
J J
2. The defendant pleaded guilty to a total of 11 charges, namely
K 6 charges of “Conspiracy to defraud” (Charges 1, 2, 3, 4, 5 and 7), 4 charges K
of “Using a copy of a false instrument” (Charges 11, 12, 16 and 17) and 1
L L
charge of “Using copies of false instruments” (Charge 15).
M M
3. Upon the defendant’s guilty pleas to the 11 charges, the
N N
prosecution asked for the remaining charges be kept in court file, not to be
O proceeded without leave of the court and the Court of Appeal. O
P P
BRIEF FACTS
Q Q
4. The defendant was the sole proprietor and licensee of an
R R
employment agency named “D’Sun Employment Services”. D’Sun
S Employment Services handled employment contracts with foreign S
domestic helpers (“FDH”) and submitted visa applications with the
T T
U U
V V
-3-
A A
B B
Immigration Department to facilitate the approval of the employment visas
C and extension of visas in Hong Kong. C
D D
Charges 2, 5 and 7
E E
5. In 2011, a Filipina named Cathy called the defendant and
F F
asked her to find an employer for ALMAYDA Maria Isabel Martin (S1)
G and to make a domestic helper visa for S1 to stay in Hong Kong. For G
reasons unclear, instead of finding a real employer and making a proper
H H
application with the Immigration Department, a mainlander named Chan
I Kan (“Chan”) was asked to provide bogus FDH employment contract, I
financial and residential proof at HK$30,000 to facilitate the application.
J J
K 6. Cathy agreed to the arrangement and Chan provided to the K
defendant with a copy of the bogus employer’s identity card, financial and
L L
residential proof and a signed employment contract.
M M
7. The defendant successfully applied for a FDH employment
N N
visa from the Immigration Department for S1.
O O
8. Cathy then paid HK$30,000 to the defendant who kept
P P
HK$10,000 as her commission and gave HK$20,000 to Chan.
Q Q
9. In 2013, S1 asked the defendant to arrange an extension for
R R
her visa and told her that she would not be working for any employer in
S Hong Kong and just wanted to get a visa to stay in Hong Kong. S
T T
U U
V V
-4-
A A
B B
10. The defendant referred S1 to Chan and the defendant again
C received bogus documents to be submitted to the Immigration Department C
for an extension of a FDH employment visa. The application was
D D
successful.
E E
11. The same method was used in 2015 to process S1’s
F F
application for a second extension of a FDH employment visa. The
G application was also successful. The defendant was paid HK$10,000 as G
commission for each visa application.
H H
I Charges 1 and 3 I
J J
12. Chan also asked the defendant to process the FDH visa
K application for ALCANTARA Ludivina Cornesta (S5) in 2011 and the K
extension of S5’s FDH visa in 2013 using the same method of submitting
L L
bogus documents to the Immigration Department. The defendant received
M HK$10,000 for each application. M
N N
Charge 4
O O
13. In 2013, a Filipina ARTATES Mary Ann Belaniso asked the
P P
defendant to process a FDH visa for her to stay in Hong Kong. S2 also
Q made the same arrangement with Chan in providing bogus documents for Q
submissions to the Immigration Department via the defendant. The
R R
application was successful.
S S
T T
U U
V V
-5-
A A
B B
Charges 11, 12, 15, 16 and 17
C C
14. The defendant processed a FDH employment visa application
D D
for SIEW Chee Wee (E9) as employer and MABBORANG Venue Corpuz
E (S11) as the FDH on 2 November 2106 using a copy of the payment advice E
purportedly issued by Cable TV. (Charge 11)
F F
G 15. The defendant also helped her daughter HUNG Wing Yan G
(E8), her daughter’s two friends, namely MOK Sze Man (E3) and YUEN
H H
Kwok Wing (E4) to make false residential and financial proof in their
I names to be submitted to the Immigration Department for their applications I
for FDH employment visas. (Charges 12, 15, 16 and 17)
J J
K 16. As E3, E4, E8 and E9 could not provide income and K
residential proof in support of their applications, so the defendant assisted
L L
them by asking her assistant Lucy in the agency to make false instruments
M in support. The defendant gave Lucy her I-Cable statements, bank M
statements and electricity bills as template to make false instruments by
N N
cutting and pasting the false information onto the templates before making
O colour copies. O
P P
17. For E3, the defendant has processed two FDH employment
Q visa applications for E3 as employer and CORONEL Snooky Yema (S3) Q
and S2 as FDH on 9 August 2017 and 12 October 2017 respectively, using
R R
false financial and residential proof. (Charges 16 and 17)
S S
T T
U U
V V
-6-
A A
B B
18. Other than Charge 16, the application of which was refused
C by the Immigration Department, all the other applications were C
successfully made.
D D
E THE DEFENDANT’S BACKGROUND AND MITIGATION E
F F
19. The defendant is 55 years of age with a clear criminal record.
G She has two daughters, now all grown up. They are very supportive of the G
defendant and were present in court for her. I have no doubt that the
H H
defendant is good mother to her two children.
I I
20. She had two failed marriages which left her destitute. She was
J J
left alone to take care of her two, then young daughters. She went through
K a lot of financial difficulties, and at one stage, had to work as a dish washer K
to make ends meet. She suffered from skin problem, Vitiligo and
L L
depression.
M M
SENTENCING CONSIDERATION
N N
O 21. That said, the offences which the defendant committed were O
serious ones. In DCCC 1167/2011 HKSAR v Mendoza Zenaida Tabilog
P P
and anor, HH Judge S D’Almada Remedios, (now High Court Judge)
Q wrote in paragraphs 17 to 21 as follows:- Q
R R
“17. Immigration regulations and Immigration officers’
duties are an important safeguard in the proper and legal
S S
employment of persons in Hong Kong.
T T
U U
V V
-7-
A A
B 18. Immigration Department deal with many thousands of B
applications nowadays for the employment of domestic helpers,
C whether they be new applicants or applicants extending their C
visas.
D 19. What the defendants were doing was defrauding a D
government department in dishonestly representing that these
E
domestic helpers would work as helpers when in fact, there was E
no intention that they would do so. They would have taken
employment in other fields.
F F
20. The main purpose of the restrictions on their visas is to
prevent them from working in the community illegally. The
G G
defendants were paid by those persons. It is difficult in most
cases for the authorities to uncover the deception.
H H
21. This is clearly a very serious offence and precedent shows
that an element of deterrence in sentences must be passed.”
I I
22. I cannot agree more to be above comments.
J J
K 23. As for the imposition of financial/income proof and K
residential proof from employers in support of their applications by the
L L
Immigration Department, is to ensure that the employers do have the means
M to pay for the salary and to provide reasonable accommodation to the FDH. M
By submitting false financial/income proof and residential proof to the
N N
Immigration Department, it undermines their aim to protect the FDH.
O O
P
24. Having said, I accepted that other than the occasions in the P
present proceedings which bogus applications had been made, the
Q Q
defendant’s employment agency had also carried out legitimate business.
R R
S S
T T
U U
V V
-8-
A A
B B
SENTENCE
C C
25. I consider a global starting point for all the offences should be
D D
one of 36 months’ imprisonment. Giving the defendant her full 1/3
E discount, her sentence should be one of 24 months’ imprisonment. E
F F
26. In order to achieve this, I made the following order:-
G G
(1) The starting point for Charges 2, 5 and 7 be of 24
H H
months’ imprisonment and reduced to 16 months after
I the 1/3 discount, all to be served concurrently; I
J J
(2) The starting point for Charges 1 and 3 be of 24 months’
K imprisonment and reduced to 16 months after the 1/3 K
discount, with 6 months to be served consecutively and
L L
the remaining terms to be served concurrently to
M Charges 2, 5 and 7; M
N N
(3) The starting point for Charge 4 be of 21 months’
O imprisonment and reduced to 14 months after the 1/3 O
discount, with 2 months to be served consecutively and
P P
the remaining terms to be concurrently to Charges 1, 2,
Q 3, 5 and 7. Q
R R
(4) The starting point for Charges 11, 12, 15, 16 and 17 be
S of 9 months’ imprisonment and reduced to 6 months, S
the terms of which to be served concurrently with
T T
Charges 1, 2, 3, 4, 5 and 7.
U U
V V
-9-
A A
B B
C 27. The defendant is sentenced to 24 months’ imprisonment for C
all the charges.
D D
E E
F F
( Louisa LAI )
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 1168/2018
C [2019] HKDC 1004 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 1168 OF 2018
F F
G ---------------------------- G
HKSAR
H H
v
I OSIAS MYRNA Q I
----------------------------
J J
K Before: Deputy District Judge Louisa Lai K
Date: 24 July 2019
L L
Present: Mr Lam Shun Chiu, Counsel on fiat, for HKSAR
M Mr James HM McGowan, instructed by Yu Hung & Co, for M
the defendant
N N
Offence: [1] - [8], [13] Conspiracy to defraud（串謀詐騙）
O O
[9], [14] - [15] Using copies of false instruments（使用虛假
P 文件的副本） P
[10] - [12], [16] & [17] Using a copy of a false instrument（使
Q Q
用虛假文書的副本）
R R
[18] Possessing false instruments（管有虛假文書）
S S
T T
U U
V V
-2-
A A
B B
-----------------------------------------
C REASONS FOR SENTENCE C
-----------------------------------------
D D
E 1. The defendant was charged with 9 charges of “Conspiracy to E
defraud”, contrary to Common Law and sections 2(3) and 4(2) of the
F F
Criminal Jurisdiction Ordinance, Cap 461 and punishable under section
G 159C(6) of the Crimes Ordinance, Cap 200; 8 charges of “Using copies/a G
copy of false instrument(s)”, contrary to section 74 of the Crimes
H H
Ordinance, Cap 200 and 1 charge of “ Possessing false instruments,
I contrary to section 75(1) of the Crimes Ordinance, Cap 200. I
J J
2. The defendant pleaded guilty to a total of 11 charges, namely
K 6 charges of “Conspiracy to defraud” (Charges 1, 2, 3, 4, 5 and 7), 4 charges K
of “Using a copy of a false instrument” (Charges 11, 12, 16 and 17) and 1
L L
charge of “Using copies of false instruments” (Charge 15).
M M
3. Upon the defendant’s guilty pleas to the 11 charges, the
N N
prosecution asked for the remaining charges be kept in court file, not to be
O proceeded without leave of the court and the Court of Appeal. O
P P
BRIEF FACTS
Q Q
4. The defendant was the sole proprietor and licensee of an
R R
employment agency named “D’Sun Employment Services”. D’Sun
S Employment Services handled employment contracts with foreign S
domestic helpers (“FDH”) and submitted visa applications with the
T T
U U
V V
-3-
A A
B B
Immigration Department to facilitate the approval of the employment visas
C and extension of visas in Hong Kong. C
D D
Charges 2, 5 and 7
E E
5. In 2011, a Filipina named Cathy called the defendant and
F F
asked her to find an employer for ALMAYDA Maria Isabel Martin (S1)
G and to make a domestic helper visa for S1 to stay in Hong Kong. For G
reasons unclear, instead of finding a real employer and making a proper
H H
application with the Immigration Department, a mainlander named Chan
I Kan (“Chan”) was asked to provide bogus FDH employment contract, I
financial and residential proof at HK$30,000 to facilitate the application.
J J
K 6. Cathy agreed to the arrangement and Chan provided to the K
defendant with a copy of the bogus employer’s identity card, financial and
L L
residential proof and a signed employment contract.
M M
7. The defendant successfully applied for a FDH employment
N N
visa from the Immigration Department for S1.
O O
8. Cathy then paid HK$30,000 to the defendant who kept
P P
HK$10,000 as her commission and gave HK$20,000 to Chan.
Q Q
9. In 2013, S1 asked the defendant to arrange an extension for
R R
her visa and told her that she would not be working for any employer in
S Hong Kong and just wanted to get a visa to stay in Hong Kong. S
T T
U U
V V
-4-
A A
B B
10. The defendant referred S1 to Chan and the defendant again
C received bogus documents to be submitted to the Immigration Department C
for an extension of a FDH employment visa. The application was
D D
successful.
E E
11. The same method was used in 2015 to process S1’s
F F
application for a second extension of a FDH employment visa. The
G application was also successful. The defendant was paid HK$10,000 as G
commission for each visa application.
H H
I Charges 1 and 3 I
J J
12. Chan also asked the defendant to process the FDH visa
K application for ALCANTARA Ludivina Cornesta (S5) in 2011 and the K
extension of S5’s FDH visa in 2013 using the same method of submitting
L L
bogus documents to the Immigration Department. The defendant received
M HK$10,000 for each application. M
N N
Charge 4
O O
13. In 2013, a Filipina ARTATES Mary Ann Belaniso asked the
P P
defendant to process a FDH visa for her to stay in Hong Kong. S2 also
Q made the same arrangement with Chan in providing bogus documents for Q
submissions to the Immigration Department via the defendant. The
R R
application was successful.
S S
T T
U U
V V
-5-
A A
B B
Charges 11, 12, 15, 16 and 17
C C
14. The defendant processed a FDH employment visa application
D D
for SIEW Chee Wee (E9) as employer and MABBORANG Venue Corpuz
E (S11) as the FDH on 2 November 2106 using a copy of the payment advice E
purportedly issued by Cable TV. (Charge 11)
F F
G 15. The defendant also helped her daughter HUNG Wing Yan G
(E8), her daughter’s two friends, namely MOK Sze Man (E3) and YUEN
H H
Kwok Wing (E4) to make false residential and financial proof in their
I names to be submitted to the Immigration Department for their applications I
for FDH employment visas. (Charges 12, 15, 16 and 17)
J J
K 16. As E3, E4, E8 and E9 could not provide income and K
residential proof in support of their applications, so the defendant assisted
L L
them by asking her assistant Lucy in the agency to make false instruments
M in support. The defendant gave Lucy her I-Cable statements, bank M
statements and electricity bills as template to make false instruments by
N N
cutting and pasting the false information onto the templates before making
O colour copies. O
P P
17. For E3, the defendant has processed two FDH employment
Q visa applications for E3 as employer and CORONEL Snooky Yema (S3) Q
and S2 as FDH on 9 August 2017 and 12 October 2017 respectively, using
R R
false financial and residential proof. (Charges 16 and 17)
S S
T T
U U
V V
-6-
A A
B B
18. Other than Charge 16, the application of which was refused
C by the Immigration Department, all the other applications were C
successfully made.
D D
E THE DEFENDANT’S BACKGROUND AND MITIGATION E
F F
19. The defendant is 55 years of age with a clear criminal record.
G She has two daughters, now all grown up. They are very supportive of the G
defendant and were present in court for her. I have no doubt that the
H H
defendant is good mother to her two children.
I I
20. She had two failed marriages which left her destitute. She was
J J
left alone to take care of her two, then young daughters. She went through
K a lot of financial difficulties, and at one stage, had to work as a dish washer K
to make ends meet. She suffered from skin problem, Vitiligo and
L L
depression.
M M
SENTENCING CONSIDERATION
N N
O 21. That said, the offences which the defendant committed were O
serious ones. In DCCC 1167/2011 HKSAR v Mendoza Zenaida Tabilog
P P
and anor, HH Judge S D’Almada Remedios, (now High Court Judge)
Q wrote in paragraphs 17 to 21 as follows:- Q
R R
“17. Immigration regulations and Immigration officers’
duties are an important safeguard in the proper and legal
S S
employment of persons in Hong Kong.
T T
U U
V V
-7-
A A
B 18. Immigration Department deal with many thousands of B
applications nowadays for the employment of domestic helpers,
C whether they be new applicants or applicants extending their C
visas.
D 19. What the defendants were doing was defrauding a D
government department in dishonestly representing that these
E
domestic helpers would work as helpers when in fact, there was E
no intention that they would do so. They would have taken
employment in other fields.
F F
20. The main purpose of the restrictions on their visas is to
prevent them from working in the community illegally. The
G G
defendants were paid by those persons. It is difficult in most
cases for the authorities to uncover the deception.
H H
21. This is clearly a very serious offence and precedent shows
that an element of deterrence in sentences must be passed.”
I I
22. I cannot agree more to be above comments.
J J
K 23. As for the imposition of financial/income proof and K
residential proof from employers in support of their applications by the
L L
Immigration Department, is to ensure that the employers do have the means
M to pay for the salary and to provide reasonable accommodation to the FDH. M
By submitting false financial/income proof and residential proof to the
N N
Immigration Department, it undermines their aim to protect the FDH.
O O
P
24. Having said, I accepted that other than the occasions in the P
present proceedings which bogus applications had been made, the
Q Q
defendant’s employment agency had also carried out legitimate business.
R R
S S
T T
U U
V V
-8-
A A
B B
SENTENCE
C C
25. I consider a global starting point for all the offences should be
D D
one of 36 months’ imprisonment. Giving the defendant her full 1/3
E discount, her sentence should be one of 24 months’ imprisonment. E
F F
26. In order to achieve this, I made the following order:-
G G
(1) The starting point for Charges 2, 5 and 7 be of 24
H H
months’ imprisonment and reduced to 16 months after
I the 1/3 discount, all to be served concurrently; I
J J
(2) The starting point for Charges 1 and 3 be of 24 months’
K imprisonment and reduced to 16 months after the 1/3 K
discount, with 6 months to be served consecutively and
L L
the remaining terms to be served concurrently to
M Charges 2, 5 and 7; M
N N
(3) The starting point for Charge 4 be of 21 months’
O imprisonment and reduced to 14 months after the 1/3 O
discount, with 2 months to be served consecutively and
P P
the remaining terms to be concurrently to Charges 1, 2,
Q 3, 5 and 7. Q
R R
(4) The starting point for Charges 11, 12, 15, 16 and 17 be
S of 9 months’ imprisonment and reduced to 6 months, S
the terms of which to be served concurrently with
T T
Charges 1, 2, 3, 4, 5 and 7.
U U
V V
-9-
A A
B B
C 27. The defendant is sentenced to 24 months’ imprisonment for C
all the charges.
D D
E E
F F
( Louisa LAI )
Deputy District Judge
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V