A A
B B
DCCC 168/2017
[2018] HKDC 771
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 168 OF 2017
E ____________ E
HKSAR
F v F
LAM KWONG CHOY
G G
____________
H H
Before: HH Judge Dufton
I Date: 9 July 2018 I
Present: Mr Kevin Wong, counsel on fiat, for HKSAR
J Mr Robert Pang SC leading Ms Renee Cheng, J
instructed by Chung & Kwan, for the defendant
K
Offence: Conspiracy to breach of condition of stay K
(串謀違反逗留條件)
L L
REASONS FOR VERDICT
M M
1. The defendant pleads not guilty to one charge of conspiring
N with Ms Setyowati to contravene a condition of stay imposed on Ms N
Setyowati by the Director of Immigration, contrary to section 41 of the
O O
Immigration Ordinance 1 and sections 159A and 159C of the Crimes
P Ordinance2. P
Q Q
Prosecution case
R R
2. In summary the prosecution case is that Ms Setyowati was
S permitted to remain in Hong Kong between 12 May 2011 and 12 May S
T 1
T
Cap 115.
2
Cap 200.
U U
V V
2
A A
B B
2017 for employment as a domestic helper for the defendant at the
C defendant’s home, Flat B, 12th floor, Cheong Fat Building, No. 48B Tai C
Tong Road, Yuen Long, the address specified in the employment
D D
contracts (“the contractual address”)3.
E E
3. On a day unknown between June and July 2016 in breach of
F the condition of stay that she work as a domestic helper for the defendant F
at the contractual address Ms Setyowati moved to live and work at Room
G G
D, 11/F, Tower 1, Greenfields, No. 1 Fung Kam Street, Yuen Long (“the
H Greenfields address”). H
I I
4. Ms Setyowati was not called as a witness. The prosecution
J rely on a written record of interview in which the defendant admitted that J
he asked Ms Setyowati to work and live at the Greenfields address and
K K
that Ms Setyowati did move to work and live at the Greenfields address.
L L
Defence case
M M
5. The defence objected to the admissibility of the written
N N
record of interview. On ruling the record of interview admissible in
O evidence the defence advanced no defence case. O
P P
Conspiracy
Q Q
6. Conspiracy is an agreement between two or more persons to
R do an unlawful act or to do a lawful act by unlawful means with the R
intention of carrying it out. The agreement may be proved by direct
S S
evidence, or by proving circumstances from which the court may
T T
3
See clause 3 of the employment contracts, exhibits P1-P3.
U U
V V
3
A A
B B
presume it. Proof of the existence of a conspiracy is generally a matter of
C inference, deduced from certain criminal acts of the parties accused. C
D 7. The unlawful act alleged is to contravene the condition of D
stay imposed by the Director of Immigration that Ms Setyowati was
E E
permitted to remain in Hong Kong for employment as a domestic helper
F for the defendant at the contractual address. F
G G
Evidence
H H
8. The alternate procedure was adopted. The prosecution called
I two witnesses on the schedule of prosecution witnesses attached to the I
prosecution opening: Immigration Assistant So Chun Ming (PW2) who
J J
arrested and interviewed the defendant and Immigration Officer Lee Yan
K K
Yi (PW3) who witnessed the service of a notice to persons in custody on
L
the defendant and served on the defendant a form asking the defendant if L
4
he had any loss or complaint to make during the investigation .
M M
9. The evidence of Senior Immigration Assistant Li Hung
N N
(PW8) relating to the movement record of Ms Setyowati was read
O pursuant to section 65B of the Criminal Procedure Ordinance 5. All other O
evidence was admitted pursuant to section 65C of the Criminal Procedure
P P
6
Ordinance .
Q Q
R R
4
S The prosecution opening and the admitted facts both referring to witnesses by their witness S
number on the schedule of prosecution witnesses the same numbering was used for the two
witnesses called, PW2 and PW3.
T 5
T
Cap 221.
6
Exhibit P4.
U U
V V
4
A A
B B
Defence evidence
C C
10. The defendant elected to remain silent on both the special
D and general issues. No witnesses were called on behalf of the defendant. D
E E
11. Admitted in evidence is that the defendant has one
F conviction for common assault in 1986 when he was fined $350 7. The F
conviction being spent and for an entirely unrelated matter, I direct
G G
myself as to good character in accordance with the decision in HKSAR v
H Tang Siu Man8. H
I 12. In reaching my verdict I remind myself of the burden and I
standard of proof and that the burden is on the prosecution throughout.
J J
The defendant has to prove nothing. I direct myself that I must be sure of
K K
the guilt of the defendant before I can convict.
L L
13. I remind myself that when drawing inferences from the
M evidence a court may only draw an inference if that inference is the only M
reasonable inference to draw from the proved facts. If from the facts
N N
proved there is a reasonable inference to draw against a defendant as well
O as one in his favour the adverse inference cannot be drawn. O
P P
14. I have carefully considered all the evidence and the
Q submissions of Mr Wong and Mr Pang SC. Q
R R
S S
T 7
T
See §9 of the admitted facts, exhibit P4.
8
[1997-98] 1 HKCFAR 107.
U U
V V
5
A A
B B
Voir dire
C C
15. Guided by the decision in HKSAR v Okafor 9 as applied in
D HKSAR v Ip Chun Yin10 I will first give my reasons for ruling the record D
of interview voluntary and admissible in evidence.
E E
F 16. The defence objected to the admissibility of the record of F
interview on the grounds the interview was obtained as a result of
G G
inducement and or oppression as particularised in the written grounds of
H objection submitted by Mr Pang SC11. H
I Evidence I
J J
17. The prosecution called two witnesses Immigration Assistant
K So Chun Ming (“IA So”) (PW2) and Immigration Officer Lee Yan Yi K
(“IO Lee”) (PW3). The defendant elected not to give evidence or call
L L
witnesses. No adverse inference was drawn against the defendant for
M remaining silent. It was for the prosecution to prove beyond reasonable M
doubt that the interview was given voluntarily.
N N
O 18. IA So testified that on 20 September 2016 he went to Tim O
Garden situated at the G/F, Hung Fat House, No.89 Kau Yuk Road in
P P
Yuen Long where he arrested the defendant at 1638 hours. Indonesian
Q female Ms Setyowati was also arrested at Tim Garden. Q
R R
S S
9
[2012] 1 HKLRD 1041.
T 10
T
CACC 241/2014.
11
Marked “A” for identification.
U U
V V
6
A A
B B
19. Admitted in evidence is that Ms Setyowati was arrested at
C 1600 hours12. Also admitted is that Ms Setyowati was employed by the C
defendant as a domestic helper and that it was a condition of stay that Ms
D D
Setyowati reside and work at the contractual address13.
E E
20. At 1712 hours IA So took the defendant to the offices of the
F Outside Investigation Section in Kowloon Bay. In cross-examination IA F
So agreed that on the way to the offices the minibus taking them stopped
G G
at the Greenfields address. As far as IA So knew the team members who
H alighted from the minibus went with Ms Setyowati to recover her H
passport, however, no one was able to enter the premises and the passport
I I
was not recovered.
J J
21. IA So agreed that on that day no house search was conducted
K K
at the Greenfields address or at any other address.
L L
22. On arrival at the offices of the Outside Investigation Section
M M
IA So arranged for the defendant to sit in an interview room. The
N defendant sat by himself for about fifteen minutes. At 1826 hours IA So N
served on the defendant a Notice to Persons in Custody (exhibit P5).
O O
23. IA So read the notice to the defendant. IA So then asked the
P P
defendant to sign only if he understood the notice. Both the defendant
Q and IA So signed the notice. The defendant also signed to acknowledge Q
receipt of a copy of the notice at 1837 hours. IO Lee witnessed the
R R
defendant being served with a copy of the notice. IO Lee also signed on
S the notice as a witness. S
T 12
T
See §5 of the admitted facts, exhibit P4.
13
See §§1-4 of the admitted facts, exhibit P4.
U U
V V
7
A A
B B
24. After a copy of the notice was given to the defendant, the
C defendant said he would like to contact a lawyer. The defendant was left C
alone in the interview room and allowed to use his mobile phone. After
D D
about ten minutes the defendant made a gesture through the glass window
E of the room indicating that he had finished making the call. E
F 25. The defendant told IA So that his ex-wife (Madam Chan14) F
could not provide him with the contact details of the lawyer. IA So
G G
therefore gave the defendant a guide to Hong Kong lawyers. The
H defendant said he did not need to look at the guide. H
I I
26. The defendant was then searched and photographed after
J which he was given a meal. J
K K
27. Between 2033 and 0145 hours. IA So took a written record
L
of interview (exhibit P6). Apart from the defendant no other person was L
present in the interview room when IA So conducted the interview.
M M
28. The defendant signed after each question was asked to
N N
represent that he had read the question. After the defendant answered the
O question IA So wrote down the answer. Once the defendant confirmed O
the answer was given by him he signed next to the answer.
P P
Q 29. At the end of the interview the defendant wrote out the Q
declaration to represent that he had read the interview; that the content
R R
was accurate and that he could make any addition, alteration or deletion.
S The defendant did not make any amendment or correction. At 0200 S
T T
14
Madam Chan is referred to in Answer 12 and QA 29 & 32 of the record of interview.
U U
V V
8
A A
B B
hours the defendant signed to acknowledge receipt of a copy of the
C interview (exhibit P7). C
D 30. IA So testified that the record of interview was an accurate D
record and that in taking the record of interview he did not nor did
E E
anybody else use any violence; threaten or induce the defendant.
F F
31. At 0230 a.m. IO Lee served on the defendant a form asking
G G
the defendant if he had any loss or complaint to make during the
H investigation (exhibit P8). After explaining the form to the defendant IO H
Lee asked the defendant to write down on the form if he had any loss or
I I
complaint. The defendant signed the form indicating he had no damage,
J loss, discontent or complaint to make. IO Lee testified that prior to the J
defendant signing the form he did not use any violence, threaten or
K K
induce the defendant15.
L L
Discussion
M M
32. I carefully considered all the evidence and the submissions
N N
of Mr Wong and Mr Pang SC.
O O
33. The issue was one of credibility.
P P
Unexplained discrepancy
Q Q
R 34. In submitting no case to answer on the admissibility of the R
record of interview Mr Pang SC submitted that there was a large
S S
T T
15
The defence did not object to the admissibility of this form.
U U
V V
9
A A
B B
unexplained discrepancy in the evidence of IA So and IO Lee as to
C whether the defendant was permitted to call his ex-wife. C
D 35. IA So testified that after the defendant said he wanted to D
contact his lawyer he told IO Lee of this request. IA So then allowed the
E E
defendant to use his mobile phone. In cross-examination IA So said that
F it was IO Lee who permitted the defendant to call a lawyer. F
G G
36. In cross-examination IO Lee confirmed that at the time of
H the taking of the record of interview the defendant’s ex-wife was a H
suspect and had not been arrested; no house search had been conducted
I I
and that a record of interview was also being taken from Ms Setyowati.
J IO Lee agreed that he would not allow an arrested person unsupervised J
contact with a suspect and that he did not give permission for the
K K
defendant to have unsupervised contact with his ex-wife.
L L
37. Mr Pang SC submitted that the evidence of IA So permitting
M M
the defendant unsupervised contact with his ex-wife was diametrically
N opposite to the evidence of IO Lee, who would not have allowed N
unsupervised access to a suspect and did not give permission for the
O O
defendant to have unsupervised contact with his ex-wife.
P P
38. I had no hesitation in rejecting this submission. In my view
Q there was no discrepancy in the evidence about whether the defendant Q
was permitted to call his ex-wife. IA So sought permission from IO Lee
R R
for the defendant to call a lawyer and not permission to call his ex-wife.
S Only after the defendant made the call did he tell IA So that he had called S
his ex-wife.
T T
U U
V V
10
A A
B B
39. In final submission on the admissibility of the record of
C interview Mr Pang SC submitted that the discrepancy was not whether C
the defendant was permitted to call his ex-wife but that IA So allowed the
D D
defendant to use his mobile phone unsupervised when there were still
E suspects who had not been arrested and house searches to be conducted, E
whereas IO Lee said in these circumstances he would not have allowed
F F
such unsupervised contact.
G G
40. Mr Pang SC submitted that this unexplained discrepancy cast
H doubt on the reliability of IA So’s evidence. I had no hesitation in H
rejecting this submission. I accepted the evidence of IA So that IO Lee
I I
having granted the defendant permission to call a lawyer he allowed the
J J
defendant to use his mobile phone to contact a lawyer.
K K
41. Whilst it may have been more prudent for IA So to ascertain
L who exactly the defendant was going to call and to make the call for him, L
the fact IA So allowed the defendant unsupervised to use his mobile
M M
phone to contact a lawyer did not cause me to doubt his evidence about
N the taking of the record of interview. N
O O
Breach of the Rules and Directions for questioning suspects and the
P taking of statements P
Q 42. Direction 1 (d) provides that when a person is being Q
questioned or elects to make statement, a record should be kept of the
R R
time or times at which, during the questioning or making of a statement,
S there were intervals or refreshment was taken. S
T T
U U
V V
11
A A
B B
43. In cross-examination IA So said that during the interview the
C defendant went to the rest room once. IA So did not record this interval C
in the record of interview and said that he had recorded this in another
D D
form. In re-examination IA So identified the other form as ID 896 16. IA
E So said that he made a contemporaneous record of the time of the visit to E
the washroom in ID 896.
F F
44. Mr Pang SC submitted this was a substantial breach of the
G G
Rules and Directions, in particular as one of the grounds of objection was
H that IA So went in and out of the interview room on numerous H
occasions17.
I I
J 45. I accepted the evidence of IA So that there was an interval to J
go to the washroom, the time of which he recorded in ID 896. Whilst the
K K
interval should have been noted in the record of interview I was satisfied
L that this was not a substantial or significant breach of the Rules and L
Directions.
M M
N 46. The fact the interval was not recorded in the record of N
interview but recorded in ID 896 did not cause me to doubt IA So’s
O O
evidence about the taking of the record of interview.
P P
Timing
Q Q
47. Mr Pang SC submitted that the timing of the interview cried
R R
out for an explanation, for example that the first two pages took only
S S
16
ID 896 was not produced in evidence.
T 17
This submission was made when submitting no case to answer on the voir dire and in final T
submission on admissibility. Also see §6 of the written grounds of objection which alleged IA So
went in and out of the room on numerous occasions.
U U
V V
12
A A
B B
twenty-nine minutes whereas the next five pages took an average of fifty-
C three minutes per page18. C
D 48. Relying on the confirmation in cross-examination by both IA D
So and IO Lee that at the same time the record of interview was being
E E
conducted Ms Setyowati was also being interviewed, Mr Pang SC
F submitted the only inference to draw was that the interview took so long F
because IA So left the interview room to compare notes with other
G G
officers or to take instructions on what would be the appropriate answers
H to put down. H
I I
49. The defence case as put in cross-examination was that IA So
J put down answers which were not made by the defendant19. In cross- J
examination IA So disagreed that the record of interview did not
K K
accurately record the answers given by the defendant. Specifically, IA So
L disagreed that answers 7-12; 14-16; 18; 20-34 and 36-38 were not L
accurate and not made by the defendant.
M M
N 50. The defendant was cautioned for aiding and abetting an N
Indonesian female to breach her condition of stay by working at G/F,
O O
Hung Fat House, 89 Kau Yuk Road, Yuen Long (Tim Garden 20 ); for
P working at the Greenfields address and for making false statements that P
Ms Setyowati would work and reside at the contractual address.
Q Q
51. The written record in my view shows that the defendant was
R R
allowed to answer in the way he wanted, for example, the defendant, inter
S S
18
This submission was made when submitting no case to answer on the voir dire.
T 19
T
Also see §5c of the written grounds of objection.
20
Tim Garden was the place of arrest. See §18.
U U
V V
13
A A
B B
alia, said he was the boss of Tim Garden and that his domestic helper was
C there on the day of arrest because he had asked her to collect something C
and that previously he had asked his domestic helper to go to Tim Garden
D D
to get money for buying food or take some meat and vegetables home for
E cooking21. These answers were clear denials of the allegation he aided E
and abetted his domestic helper to work at Tim Garden.
F F
52. Further, when the defendant was shown a photograph of his
G G
domestic helper apparently in working clothes at Tim Garden the
H defendant said he did not know why she was in such an outfit22. This H
answer again was a denial of the allegation he aided and abetted his
I I
domestic helper to work at Tim Garden.
J J
53. I had no hesitation in rejecting the allegation that IA So put
K K
down answers not made by the defendant.
L L
54. I carefully looked at the record of interview and the time
M M
taken for each part of the interview. The fact that the question and
N answer section from QA7 to QA38 took four hours and twenty-five N
minutes did not cause me to doubt IA So’s evidence about the taking of
O O
the record of interview. In addition, the defendant wrote out the
P declaration at the end of the interview confirming the accuracy of the P
questions and answers.
Q Q
R R
S S
T 21
T
See answers 8, 14, 15 & 38.
22
See answer 24.
U U
V V
14
A A
B B
Corrections
C C
55. In cross examination IA So was asked about the correction
D of the last character of the Greenfields address. The correction appears in D
seven places: the preamble; answers 20 and 22 and questions 33, 34, 36
E E
and 37.
F F
56. IA So said that it was the defendant who spotted the mistake
G G
when he was reading through the statement at the end of the interview.
H IA So then checked the whole document and made the corrections. H
I 57. The defendant read the statement between 0135 and 0138 I
hours after which he said he had no corrections, alterations or additions to
J J
make. At 0140 hours the defendant wrote out the declarations. The
K K
interview was concluded at 0145 hours.
L L
58. Mr Pang SC submitted the evidence that the defendant
M spotted the mistake when reading the interview was incredible. Mr Pang M
SC submitted that if the defendant was the one who spotted the error it
N N
was inherently improbable that he did not spot this earlier when he read
O the preamble or when signing to confirm each question was asked and O
each answer was given by him23.
P P
Q 59. Mr Pang SC further submitted that not only was the evidence Q
inconsistent with the defendant declaring he had no corrections to make,
R R
but more importantly the evidence that the reading of the record of
S interview by the defendant and the making of all the corrections took only S
T T
23
This submission was made in final submission on admissibility.
U U
V V
15
A A
B B
three minutes, was evidence Mr Pang SC submitted that did not accord
C with any reality. C
D 60. I had no hesitation in rejecting this submission. The D
correction of the last character of the Greenfields address did not in any
E E
way affect the substance of what the defendant told IA So. The
F correction of the last character of the Greenfields address did not cause F
me to doubt the evidence of IA So. Nor did the fact that the defendant
G G
declared that he had no corrections to make cause me to doubt the
H evidence of IA So. H
I I
61. Having carefully considered all the evidence I was satisfied
J so I was sure that IA So and IO Lee were witnesses of truth who gave J
credible and reliable evidence. I accepted the evidence of IA So and IO
K K
Lee.
L L
62. I was satisfied so I was sure the defendant was not induced
M M
or subject to oppression. I was satisfied beyond reasonable doubt that the
N record of interview was given by the defendant voluntarily. N
O 63. In reaching my findings I carefully considered the O
submissions of Mr Pang SC. Nothing said by Mr Pang SC caused me to
P P
doubt that the written record of interview was given voluntarily.
Q Q
64. I ruled the Notice to Persons in Custody (exhibit P5); the
R R
record of interview (exhibit P6) and the acknowledgement (exhibit P7)
S admissible in evidence. S
T T
U U
V V
16
A A
B B
Discretion
C C
65. The defendant was made aware of his rights having been
D served with a Notice to Persons in Custody and cautioned at the D
beginning of the interview. Applying the principles established in
E E
HKSAR v Lam Tat Ming, I found no grounds to exercise my discretion to
F exclude from evidence the written record of interview on the grounds of F
unfairness24.
G G
H 66. I also noted that after the interview was completed the H
defendant signed to say he did not have any damage, loss, discontent or
I I
complaint while under the enquiry of the Immigration Department
J (exhibit P8). J
K K
General issue
L L
Evidence
M M
67. Apart from the oral evidence of IA So and IO Lee given on
N N
the voir dire, no other witnesses were called by the prosecution. The
O evidence of Senior Immigration Assistant Li Hung (PW8), detailing the O
movement records of Ms Setyowati between 1 July 2008 and 24 January
P P
2017, was read pursuant to section 65B of the Criminal Procedure
Q Ordinance25. Q
R 68. The defendant elected not to give evidence or call any R
witnesses. No adverse inference is drawn against the defendant for
S S
T 24
T
[2000] 2 HKLRD 431.
25
Cap 221. Exhibit P9
U U
V V
17
A A
B B
remaining silent. That is his right. This proves nothing one way or the
C other. This does not establish his guilt. On the other hand this means C
there is no evidence from the defence to undermine, contradict or explain
D D
the evidence led by the prosecution.
E E
Prosecution evidence
F F
69. Regulation 2 (4) of the Immigration Regulations26 provides
G G
that where a person is given permission to land in Hong Kong for
H employment that person is subject to the condition of stay that he shall H
only take such employment as may be approved by the Director.
I I
70. Admitted in evidence is that Ms Setoywati was employed by
J J
the defendant as a foreign domestic helper pursuant to employment
K K
contracts no. H296055 dated 28 March 2011 (exhibit P1); J481610 dated
L
1 April 2013 (exhibit P2); and J521592 dated 9 March 2015 (exhibit P3)27. L
M 71. Clause 3 of the employment contracts provide that the helper M
shall work and reside in the employer’s residence (the contractual
N N
address). Also admitted is that it was a condition of stay that Ms
O Setyowati reside and work at the contractual address28. O
P P
72. The movement records of Ms Setyowati show, inter alia, that
Q Ms Setyowati first came to Hong Kong on 14 November 2008; Ms Q
Setyowati’s permission to stay in Hong Kong was extended on 29 April
R R
2011; 23 April 2013 and 27 April 2015 which was after the signing of the
S S
26
Cap 115.
T 27
T
See §§1-3 of the admitted facts, exhibit P4.
28
See §4 of the admitted facts, exhibit P4.
U U
V V
18
A A
B B
three employment contracts on 28 March 2011; 1 April 2013 and 9 March
C 2015; and that Ms Setyowati was in Hong Kong in June and July 2016, C
29
the dates particularised in the charge .
D D
73. In the written record of interview the defendant admitted,
E E
inter alia, that Ms Setyowati previously resided in the contractual address;
F in June or July 2016 he asked Ms Setyowati to move to the Greenfields F
address to do domestic chores and look after his two children; Ms
G G
Setyowati moved to the Greenfields address where she worked and
H resided; and that he did not make a declaration notifying the Immigration H
Department that Ms Setyowati would work and reside in the Greenfields
I I
30
address .
J J
Discussion
K K
L
74. I have carefully considered all the evidence. L
M 75. In final submission Mr Pang SC adopted the submissions M
made during the voir dire and reminded the court that they must be
N N
satisfied as to the truth of what is written in the record of interview.
O O
76. I accept the prosecution evidence. I am satisfied so I am sure
P P
that full weight is to be attached to the admissions in the written record of
Q interview that in June or July 2016 the defendant asked Ms Setyowati to Q
move to the Greenfields address to do domestic chores and look after his
R R
two children and that Ms Setyowati did move to the Greenfields address
S where she worked and resided. S
29
T See §23, exhibit P9 together with Computer Report No.1 and explanatory notes annexed to the T
statement.
30
See answers 20, 22, 27,34, 36 & 37.
U U
V V
19
A A
B B
77. Clause 15 (b) of the employment contracts provides that the
C prior consent of the Commissioner for Labour is not required to vary the C
employer’s residential address (the contractual address) where
D D
notification in writing has been given to the Director of Immigration.
E E
78. I am satisfied so I am sure that full weight is to be attached
F to the admission in the written record of interview that the defendant did F
not notify the Immigration Department of this change.
G G
H 79. I am satisfied so I am sure the only inference to draw is that H
the defendant and Ms Setyowati agreed to breach the condition of stay
I I
that she work as a domestic helper for the defendant at the contractual
J address and carried out that agreement by moving to the Greenfields J
address where she worked and resided.
K K
L
80. In reaching my verdict I have carefully considered L
everything said on behalf of the defendant by Mr Pang SC. Nothing said
M M
by Mr Pang SC causes me to doubt the findings I have made.
N N
81. I am satisfied so I am sure there are no material and
O significant discrepancies, improbabilities or omissions in the evidence O
which cause me to doubt the findings I have made. I am satisfied so I am
P P
sure the prosecution have proved all the elements of the charge beyond
Q reasonable doubt. The defendant is convicted as charged. Q
R R
S S
(D. J. DUFTON)
District Judge
T T
U U
V V
A A
B B
DCCC 168/2017
[2018] HKDC 771
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 168 OF 2017
E ____________ E
HKSAR
F v F
LAM KWONG CHOY
G G
____________
H H
Before: HH Judge Dufton
I Date: 9 July 2018 I
Present: Mr Kevin Wong, counsel on fiat, for HKSAR
J Mr Robert Pang SC leading Ms Renee Cheng, J
instructed by Chung & Kwan, for the defendant
K
Offence: Conspiracy to breach of condition of stay K
(串謀違反逗留條件)
L L
REASONS FOR VERDICT
M M
1. The defendant pleads not guilty to one charge of conspiring
N with Ms Setyowati to contravene a condition of stay imposed on Ms N
Setyowati by the Director of Immigration, contrary to section 41 of the
O O
Immigration Ordinance 1 and sections 159A and 159C of the Crimes
P Ordinance2. P
Q Q
Prosecution case
R R
2. In summary the prosecution case is that Ms Setyowati was
S permitted to remain in Hong Kong between 12 May 2011 and 12 May S
T 1
T
Cap 115.
2
Cap 200.
U U
V V
2
A A
B B
2017 for employment as a domestic helper for the defendant at the
C defendant’s home, Flat B, 12th floor, Cheong Fat Building, No. 48B Tai C
Tong Road, Yuen Long, the address specified in the employment
D D
contracts (“the contractual address”)3.
E E
3. On a day unknown between June and July 2016 in breach of
F the condition of stay that she work as a domestic helper for the defendant F
at the contractual address Ms Setyowati moved to live and work at Room
G G
D, 11/F, Tower 1, Greenfields, No. 1 Fung Kam Street, Yuen Long (“the
H Greenfields address”). H
I I
4. Ms Setyowati was not called as a witness. The prosecution
J rely on a written record of interview in which the defendant admitted that J
he asked Ms Setyowati to work and live at the Greenfields address and
K K
that Ms Setyowati did move to work and live at the Greenfields address.
L L
Defence case
M M
5. The defence objected to the admissibility of the written
N N
record of interview. On ruling the record of interview admissible in
O evidence the defence advanced no defence case. O
P P
Conspiracy
Q Q
6. Conspiracy is an agreement between two or more persons to
R do an unlawful act or to do a lawful act by unlawful means with the R
intention of carrying it out. The agreement may be proved by direct
S S
evidence, or by proving circumstances from which the court may
T T
3
See clause 3 of the employment contracts, exhibits P1-P3.
U U
V V
3
A A
B B
presume it. Proof of the existence of a conspiracy is generally a matter of
C inference, deduced from certain criminal acts of the parties accused. C
D 7. The unlawful act alleged is to contravene the condition of D
stay imposed by the Director of Immigration that Ms Setyowati was
E E
permitted to remain in Hong Kong for employment as a domestic helper
F for the defendant at the contractual address. F
G G
Evidence
H H
8. The alternate procedure was adopted. The prosecution called
I two witnesses on the schedule of prosecution witnesses attached to the I
prosecution opening: Immigration Assistant So Chun Ming (PW2) who
J J
arrested and interviewed the defendant and Immigration Officer Lee Yan
K K
Yi (PW3) who witnessed the service of a notice to persons in custody on
L
the defendant and served on the defendant a form asking the defendant if L
4
he had any loss or complaint to make during the investigation .
M M
9. The evidence of Senior Immigration Assistant Li Hung
N N
(PW8) relating to the movement record of Ms Setyowati was read
O pursuant to section 65B of the Criminal Procedure Ordinance 5. All other O
evidence was admitted pursuant to section 65C of the Criminal Procedure
P P
6
Ordinance .
Q Q
R R
4
S The prosecution opening and the admitted facts both referring to witnesses by their witness S
number on the schedule of prosecution witnesses the same numbering was used for the two
witnesses called, PW2 and PW3.
T 5
T
Cap 221.
6
Exhibit P4.
U U
V V
4
A A
B B
Defence evidence
C C
10. The defendant elected to remain silent on both the special
D and general issues. No witnesses were called on behalf of the defendant. D
E E
11. Admitted in evidence is that the defendant has one
F conviction for common assault in 1986 when he was fined $350 7. The F
conviction being spent and for an entirely unrelated matter, I direct
G G
myself as to good character in accordance with the decision in HKSAR v
H Tang Siu Man8. H
I 12. In reaching my verdict I remind myself of the burden and I
standard of proof and that the burden is on the prosecution throughout.
J J
The defendant has to prove nothing. I direct myself that I must be sure of
K K
the guilt of the defendant before I can convict.
L L
13. I remind myself that when drawing inferences from the
M evidence a court may only draw an inference if that inference is the only M
reasonable inference to draw from the proved facts. If from the facts
N N
proved there is a reasonable inference to draw against a defendant as well
O as one in his favour the adverse inference cannot be drawn. O
P P
14. I have carefully considered all the evidence and the
Q submissions of Mr Wong and Mr Pang SC. Q
R R
S S
T 7
T
See §9 of the admitted facts, exhibit P4.
8
[1997-98] 1 HKCFAR 107.
U U
V V
5
A A
B B
Voir dire
C C
15. Guided by the decision in HKSAR v Okafor 9 as applied in
D HKSAR v Ip Chun Yin10 I will first give my reasons for ruling the record D
of interview voluntary and admissible in evidence.
E E
F 16. The defence objected to the admissibility of the record of F
interview on the grounds the interview was obtained as a result of
G G
inducement and or oppression as particularised in the written grounds of
H objection submitted by Mr Pang SC11. H
I Evidence I
J J
17. The prosecution called two witnesses Immigration Assistant
K So Chun Ming (“IA So”) (PW2) and Immigration Officer Lee Yan Yi K
(“IO Lee”) (PW3). The defendant elected not to give evidence or call
L L
witnesses. No adverse inference was drawn against the defendant for
M remaining silent. It was for the prosecution to prove beyond reasonable M
doubt that the interview was given voluntarily.
N N
O 18. IA So testified that on 20 September 2016 he went to Tim O
Garden situated at the G/F, Hung Fat House, No.89 Kau Yuk Road in
P P
Yuen Long where he arrested the defendant at 1638 hours. Indonesian
Q female Ms Setyowati was also arrested at Tim Garden. Q
R R
S S
9
[2012] 1 HKLRD 1041.
T 10
T
CACC 241/2014.
11
Marked “A” for identification.
U U
V V
6
A A
B B
19. Admitted in evidence is that Ms Setyowati was arrested at
C 1600 hours12. Also admitted is that Ms Setyowati was employed by the C
defendant as a domestic helper and that it was a condition of stay that Ms
D D
Setyowati reside and work at the contractual address13.
E E
20. At 1712 hours IA So took the defendant to the offices of the
F Outside Investigation Section in Kowloon Bay. In cross-examination IA F
So agreed that on the way to the offices the minibus taking them stopped
G G
at the Greenfields address. As far as IA So knew the team members who
H alighted from the minibus went with Ms Setyowati to recover her H
passport, however, no one was able to enter the premises and the passport
I I
was not recovered.
J J
21. IA So agreed that on that day no house search was conducted
K K
at the Greenfields address or at any other address.
L L
22. On arrival at the offices of the Outside Investigation Section
M M
IA So arranged for the defendant to sit in an interview room. The
N defendant sat by himself for about fifteen minutes. At 1826 hours IA So N
served on the defendant a Notice to Persons in Custody (exhibit P5).
O O
23. IA So read the notice to the defendant. IA So then asked the
P P
defendant to sign only if he understood the notice. Both the defendant
Q and IA So signed the notice. The defendant also signed to acknowledge Q
receipt of a copy of the notice at 1837 hours. IO Lee witnessed the
R R
defendant being served with a copy of the notice. IO Lee also signed on
S the notice as a witness. S
T 12
T
See §5 of the admitted facts, exhibit P4.
13
See §§1-4 of the admitted facts, exhibit P4.
U U
V V
7
A A
B B
24. After a copy of the notice was given to the defendant, the
C defendant said he would like to contact a lawyer. The defendant was left C
alone in the interview room and allowed to use his mobile phone. After
D D
about ten minutes the defendant made a gesture through the glass window
E of the room indicating that he had finished making the call. E
F 25. The defendant told IA So that his ex-wife (Madam Chan14) F
could not provide him with the contact details of the lawyer. IA So
G G
therefore gave the defendant a guide to Hong Kong lawyers. The
H defendant said he did not need to look at the guide. H
I I
26. The defendant was then searched and photographed after
J which he was given a meal. J
K K
27. Between 2033 and 0145 hours. IA So took a written record
L
of interview (exhibit P6). Apart from the defendant no other person was L
present in the interview room when IA So conducted the interview.
M M
28. The defendant signed after each question was asked to
N N
represent that he had read the question. After the defendant answered the
O question IA So wrote down the answer. Once the defendant confirmed O
the answer was given by him he signed next to the answer.
P P
Q 29. At the end of the interview the defendant wrote out the Q
declaration to represent that he had read the interview; that the content
R R
was accurate and that he could make any addition, alteration or deletion.
S The defendant did not make any amendment or correction. At 0200 S
T T
14
Madam Chan is referred to in Answer 12 and QA 29 & 32 of the record of interview.
U U
V V
8
A A
B B
hours the defendant signed to acknowledge receipt of a copy of the
C interview (exhibit P7). C
D 30. IA So testified that the record of interview was an accurate D
record and that in taking the record of interview he did not nor did
E E
anybody else use any violence; threaten or induce the defendant.
F F
31. At 0230 a.m. IO Lee served on the defendant a form asking
G G
the defendant if he had any loss or complaint to make during the
H investigation (exhibit P8). After explaining the form to the defendant IO H
Lee asked the defendant to write down on the form if he had any loss or
I I
complaint. The defendant signed the form indicating he had no damage,
J loss, discontent or complaint to make. IO Lee testified that prior to the J
defendant signing the form he did not use any violence, threaten or
K K
induce the defendant15.
L L
Discussion
M M
32. I carefully considered all the evidence and the submissions
N N
of Mr Wong and Mr Pang SC.
O O
33. The issue was one of credibility.
P P
Unexplained discrepancy
Q Q
R 34. In submitting no case to answer on the admissibility of the R
record of interview Mr Pang SC submitted that there was a large
S S
T T
15
The defence did not object to the admissibility of this form.
U U
V V
9
A A
B B
unexplained discrepancy in the evidence of IA So and IO Lee as to
C whether the defendant was permitted to call his ex-wife. C
D 35. IA So testified that after the defendant said he wanted to D
contact his lawyer he told IO Lee of this request. IA So then allowed the
E E
defendant to use his mobile phone. In cross-examination IA So said that
F it was IO Lee who permitted the defendant to call a lawyer. F
G G
36. In cross-examination IO Lee confirmed that at the time of
H the taking of the record of interview the defendant’s ex-wife was a H
suspect and had not been arrested; no house search had been conducted
I I
and that a record of interview was also being taken from Ms Setyowati.
J IO Lee agreed that he would not allow an arrested person unsupervised J
contact with a suspect and that he did not give permission for the
K K
defendant to have unsupervised contact with his ex-wife.
L L
37. Mr Pang SC submitted that the evidence of IA So permitting
M M
the defendant unsupervised contact with his ex-wife was diametrically
N opposite to the evidence of IO Lee, who would not have allowed N
unsupervised access to a suspect and did not give permission for the
O O
defendant to have unsupervised contact with his ex-wife.
P P
38. I had no hesitation in rejecting this submission. In my view
Q there was no discrepancy in the evidence about whether the defendant Q
was permitted to call his ex-wife. IA So sought permission from IO Lee
R R
for the defendant to call a lawyer and not permission to call his ex-wife.
S Only after the defendant made the call did he tell IA So that he had called S
his ex-wife.
T T
U U
V V
10
A A
B B
39. In final submission on the admissibility of the record of
C interview Mr Pang SC submitted that the discrepancy was not whether C
the defendant was permitted to call his ex-wife but that IA So allowed the
D D
defendant to use his mobile phone unsupervised when there were still
E suspects who had not been arrested and house searches to be conducted, E
whereas IO Lee said in these circumstances he would not have allowed
F F
such unsupervised contact.
G G
40. Mr Pang SC submitted that this unexplained discrepancy cast
H doubt on the reliability of IA So’s evidence. I had no hesitation in H
rejecting this submission. I accepted the evidence of IA So that IO Lee
I I
having granted the defendant permission to call a lawyer he allowed the
J J
defendant to use his mobile phone to contact a lawyer.
K K
41. Whilst it may have been more prudent for IA So to ascertain
L who exactly the defendant was going to call and to make the call for him, L
the fact IA So allowed the defendant unsupervised to use his mobile
M M
phone to contact a lawyer did not cause me to doubt his evidence about
N the taking of the record of interview. N
O O
Breach of the Rules and Directions for questioning suspects and the
P taking of statements P
Q 42. Direction 1 (d) provides that when a person is being Q
questioned or elects to make statement, a record should be kept of the
R R
time or times at which, during the questioning or making of a statement,
S there were intervals or refreshment was taken. S
T T
U U
V V
11
A A
B B
43. In cross-examination IA So said that during the interview the
C defendant went to the rest room once. IA So did not record this interval C
in the record of interview and said that he had recorded this in another
D D
form. In re-examination IA So identified the other form as ID 896 16. IA
E So said that he made a contemporaneous record of the time of the visit to E
the washroom in ID 896.
F F
44. Mr Pang SC submitted this was a substantial breach of the
G G
Rules and Directions, in particular as one of the grounds of objection was
H that IA So went in and out of the interview room on numerous H
occasions17.
I I
J 45. I accepted the evidence of IA So that there was an interval to J
go to the washroom, the time of which he recorded in ID 896. Whilst the
K K
interval should have been noted in the record of interview I was satisfied
L that this was not a substantial or significant breach of the Rules and L
Directions.
M M
N 46. The fact the interval was not recorded in the record of N
interview but recorded in ID 896 did not cause me to doubt IA So’s
O O
evidence about the taking of the record of interview.
P P
Timing
Q Q
47. Mr Pang SC submitted that the timing of the interview cried
R R
out for an explanation, for example that the first two pages took only
S S
16
ID 896 was not produced in evidence.
T 17
This submission was made when submitting no case to answer on the voir dire and in final T
submission on admissibility. Also see §6 of the written grounds of objection which alleged IA So
went in and out of the room on numerous occasions.
U U
V V
12
A A
B B
twenty-nine minutes whereas the next five pages took an average of fifty-
C three minutes per page18. C
D 48. Relying on the confirmation in cross-examination by both IA D
So and IO Lee that at the same time the record of interview was being
E E
conducted Ms Setyowati was also being interviewed, Mr Pang SC
F submitted the only inference to draw was that the interview took so long F
because IA So left the interview room to compare notes with other
G G
officers or to take instructions on what would be the appropriate answers
H to put down. H
I I
49. The defence case as put in cross-examination was that IA So
J put down answers which were not made by the defendant19. In cross- J
examination IA So disagreed that the record of interview did not
K K
accurately record the answers given by the defendant. Specifically, IA So
L disagreed that answers 7-12; 14-16; 18; 20-34 and 36-38 were not L
accurate and not made by the defendant.
M M
N 50. The defendant was cautioned for aiding and abetting an N
Indonesian female to breach her condition of stay by working at G/F,
O O
Hung Fat House, 89 Kau Yuk Road, Yuen Long (Tim Garden 20 ); for
P working at the Greenfields address and for making false statements that P
Ms Setyowati would work and reside at the contractual address.
Q Q
51. The written record in my view shows that the defendant was
R R
allowed to answer in the way he wanted, for example, the defendant, inter
S S
18
This submission was made when submitting no case to answer on the voir dire.
T 19
T
Also see §5c of the written grounds of objection.
20
Tim Garden was the place of arrest. See §18.
U U
V V
13
A A
B B
alia, said he was the boss of Tim Garden and that his domestic helper was
C there on the day of arrest because he had asked her to collect something C
and that previously he had asked his domestic helper to go to Tim Garden
D D
to get money for buying food or take some meat and vegetables home for
E cooking21. These answers were clear denials of the allegation he aided E
and abetted his domestic helper to work at Tim Garden.
F F
52. Further, when the defendant was shown a photograph of his
G G
domestic helper apparently in working clothes at Tim Garden the
H defendant said he did not know why she was in such an outfit22. This H
answer again was a denial of the allegation he aided and abetted his
I I
domestic helper to work at Tim Garden.
J J
53. I had no hesitation in rejecting the allegation that IA So put
K K
down answers not made by the defendant.
L L
54. I carefully looked at the record of interview and the time
M M
taken for each part of the interview. The fact that the question and
N answer section from QA7 to QA38 took four hours and twenty-five N
minutes did not cause me to doubt IA So’s evidence about the taking of
O O
the record of interview. In addition, the defendant wrote out the
P declaration at the end of the interview confirming the accuracy of the P
questions and answers.
Q Q
R R
S S
T 21
T
See answers 8, 14, 15 & 38.
22
See answer 24.
U U
V V
14
A A
B B
Corrections
C C
55. In cross examination IA So was asked about the correction
D of the last character of the Greenfields address. The correction appears in D
seven places: the preamble; answers 20 and 22 and questions 33, 34, 36
E E
and 37.
F F
56. IA So said that it was the defendant who spotted the mistake
G G
when he was reading through the statement at the end of the interview.
H IA So then checked the whole document and made the corrections. H
I 57. The defendant read the statement between 0135 and 0138 I
hours after which he said he had no corrections, alterations or additions to
J J
make. At 0140 hours the defendant wrote out the declarations. The
K K
interview was concluded at 0145 hours.
L L
58. Mr Pang SC submitted the evidence that the defendant
M spotted the mistake when reading the interview was incredible. Mr Pang M
SC submitted that if the defendant was the one who spotted the error it
N N
was inherently improbable that he did not spot this earlier when he read
O the preamble or when signing to confirm each question was asked and O
each answer was given by him23.
P P
Q 59. Mr Pang SC further submitted that not only was the evidence Q
inconsistent with the defendant declaring he had no corrections to make,
R R
but more importantly the evidence that the reading of the record of
S interview by the defendant and the making of all the corrections took only S
T T
23
This submission was made in final submission on admissibility.
U U
V V
15
A A
B B
three minutes, was evidence Mr Pang SC submitted that did not accord
C with any reality. C
D 60. I had no hesitation in rejecting this submission. The D
correction of the last character of the Greenfields address did not in any
E E
way affect the substance of what the defendant told IA So. The
F correction of the last character of the Greenfields address did not cause F
me to doubt the evidence of IA So. Nor did the fact that the defendant
G G
declared that he had no corrections to make cause me to doubt the
H evidence of IA So. H
I I
61. Having carefully considered all the evidence I was satisfied
J so I was sure that IA So and IO Lee were witnesses of truth who gave J
credible and reliable evidence. I accepted the evidence of IA So and IO
K K
Lee.
L L
62. I was satisfied so I was sure the defendant was not induced
M M
or subject to oppression. I was satisfied beyond reasonable doubt that the
N record of interview was given by the defendant voluntarily. N
O 63. In reaching my findings I carefully considered the O
submissions of Mr Pang SC. Nothing said by Mr Pang SC caused me to
P P
doubt that the written record of interview was given voluntarily.
Q Q
64. I ruled the Notice to Persons in Custody (exhibit P5); the
R R
record of interview (exhibit P6) and the acknowledgement (exhibit P7)
S admissible in evidence. S
T T
U U
V V
16
A A
B B
Discretion
C C
65. The defendant was made aware of his rights having been
D served with a Notice to Persons in Custody and cautioned at the D
beginning of the interview. Applying the principles established in
E E
HKSAR v Lam Tat Ming, I found no grounds to exercise my discretion to
F exclude from evidence the written record of interview on the grounds of F
unfairness24.
G G
H 66. I also noted that after the interview was completed the H
defendant signed to say he did not have any damage, loss, discontent or
I I
complaint while under the enquiry of the Immigration Department
J (exhibit P8). J
K K
General issue
L L
Evidence
M M
67. Apart from the oral evidence of IA So and IO Lee given on
N N
the voir dire, no other witnesses were called by the prosecution. The
O evidence of Senior Immigration Assistant Li Hung (PW8), detailing the O
movement records of Ms Setyowati between 1 July 2008 and 24 January
P P
2017, was read pursuant to section 65B of the Criminal Procedure
Q Ordinance25. Q
R 68. The defendant elected not to give evidence or call any R
witnesses. No adverse inference is drawn against the defendant for
S S
T 24
T
[2000] 2 HKLRD 431.
25
Cap 221. Exhibit P9
U U
V V
17
A A
B B
remaining silent. That is his right. This proves nothing one way or the
C other. This does not establish his guilt. On the other hand this means C
there is no evidence from the defence to undermine, contradict or explain
D D
the evidence led by the prosecution.
E E
Prosecution evidence
F F
69. Regulation 2 (4) of the Immigration Regulations26 provides
G G
that where a person is given permission to land in Hong Kong for
H employment that person is subject to the condition of stay that he shall H
only take such employment as may be approved by the Director.
I I
70. Admitted in evidence is that Ms Setoywati was employed by
J J
the defendant as a foreign domestic helper pursuant to employment
K K
contracts no. H296055 dated 28 March 2011 (exhibit P1); J481610 dated
L
1 April 2013 (exhibit P2); and J521592 dated 9 March 2015 (exhibit P3)27. L
M 71. Clause 3 of the employment contracts provide that the helper M
shall work and reside in the employer’s residence (the contractual
N N
address). Also admitted is that it was a condition of stay that Ms
O Setyowati reside and work at the contractual address28. O
P P
72. The movement records of Ms Setyowati show, inter alia, that
Q Ms Setyowati first came to Hong Kong on 14 November 2008; Ms Q
Setyowati’s permission to stay in Hong Kong was extended on 29 April
R R
2011; 23 April 2013 and 27 April 2015 which was after the signing of the
S S
26
Cap 115.
T 27
T
See §§1-3 of the admitted facts, exhibit P4.
28
See §4 of the admitted facts, exhibit P4.
U U
V V
18
A A
B B
three employment contracts on 28 March 2011; 1 April 2013 and 9 March
C 2015; and that Ms Setyowati was in Hong Kong in June and July 2016, C
29
the dates particularised in the charge .
D D
73. In the written record of interview the defendant admitted,
E E
inter alia, that Ms Setyowati previously resided in the contractual address;
F in June or July 2016 he asked Ms Setyowati to move to the Greenfields F
address to do domestic chores and look after his two children; Ms
G G
Setyowati moved to the Greenfields address where she worked and
H resided; and that he did not make a declaration notifying the Immigration H
Department that Ms Setyowati would work and reside in the Greenfields
I I
30
address .
J J
Discussion
K K
L
74. I have carefully considered all the evidence. L
M 75. In final submission Mr Pang SC adopted the submissions M
made during the voir dire and reminded the court that they must be
N N
satisfied as to the truth of what is written in the record of interview.
O O
76. I accept the prosecution evidence. I am satisfied so I am sure
P P
that full weight is to be attached to the admissions in the written record of
Q interview that in June or July 2016 the defendant asked Ms Setyowati to Q
move to the Greenfields address to do domestic chores and look after his
R R
two children and that Ms Setyowati did move to the Greenfields address
S where she worked and resided. S
29
T See §23, exhibit P9 together with Computer Report No.1 and explanatory notes annexed to the T
statement.
30
See answers 20, 22, 27,34, 36 & 37.
U U
V V
19
A A
B B
77. Clause 15 (b) of the employment contracts provides that the
C prior consent of the Commissioner for Labour is not required to vary the C
employer’s residential address (the contractual address) where
D D
notification in writing has been given to the Director of Immigration.
E E
78. I am satisfied so I am sure that full weight is to be attached
F to the admission in the written record of interview that the defendant did F
not notify the Immigration Department of this change.
G G
H 79. I am satisfied so I am sure the only inference to draw is that H
the defendant and Ms Setyowati agreed to breach the condition of stay
I I
that she work as a domestic helper for the defendant at the contractual
J address and carried out that agreement by moving to the Greenfields J
address where she worked and resided.
K K
L
80. In reaching my verdict I have carefully considered L
everything said on behalf of the defendant by Mr Pang SC. Nothing said
M M
by Mr Pang SC causes me to doubt the findings I have made.
N N
81. I am satisfied so I am sure there are no material and
O significant discrepancies, improbabilities or omissions in the evidence O
which cause me to doubt the findings I have made. I am satisfied so I am
P P
sure the prosecution have proved all the elements of the charge beyond
Q reasonable doubt. The defendant is convicted as charged. Q
R R
S S
(D. J. DUFTON)
District Judge
T T
U U
V V