HKSAR v. Wong San Wing

HCMA 39/2018

[2018] HKCFI 2301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 39 OF 2018

(ON APPEAL FROM KCCC 763 OF 2017)

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JUDGMENT

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INTRODUCTION

1.On 14 December 2017, the appellant (D1) was convicted after trial by Deputy Magistrate Andrew Ma, of the offence of Conspiracy to Defraud contrary to common law and section 159C(6) of the Crimes Ordinance, Cap 200. It was alleged that she, along with Chan Chun‑kwai (“D2”) and Huang Zhizhi (“D3”), conspired to submit a false application for the employment of a foreign domestic helper (“FDH”).  D1 and D2 were convicted after trial.  D3 was acquitted.  On 28 December 2017, D1 and D2 were each sentenced to six months’ imprisonment suspended for two years.  By her notice of appeal, dated 5 January 2018, the appellant appeals against conviction only.

THE CHARGE

2.The particulars of the charge, as amended, were as follows:

“...Wong San-wing, Chan Chun-kwai and Huang Zhizhi between a day unknown in early April 2015 and 2 June 2015, in Hong Kong conspired together to defraud an officer of the Immigration Department of the Hong Kong SAR Government namely by dishonestly:

(a) submitting or causing to submit a false Application for Employment of a Domestic Helper from Abroad, purporting to show that OBALDO Rowena Opinaldo’s employer was a Hong Kong resident;

(b) falsely representing that Wong San-wing, being the employer of OBALDO Rowena Opinaldo, resided at Flat D, 22/F Block 22 Ocean Vista Laguna Verde, Hung Hom, Kowloon (“the contractual address”); and

(c) falsely representing that Wong San‑wing had a daughter in the name of Huang Zhixi and a son in the name of Huang Eric, residing at the contractual address.

and thereby inducing the officer of the Immigration Department to act contrary to their public duty, namely, to grant the application for employment of domestic helper under circumstances which he would not otherwise have granted, contrary to common law and section 159C(6) of the Crimes Ordinance, Cap 200.”

3.The way in which the charge was drafted and thereafter amended, was unfortunate.  However, I am in a position to deal with this matter on appeal without the necessity to deal with that further.  The appellant takes no point upon it.

THE PROSECUTION CASE

4.D3 was the cousin of D1 and not a resident of Hong Kong.  Her main residence was in the Mainland.  As she was not a resident of Hong Kong, she was not allowed to employ a FDH here in Hong Kong.  D1 and D3 approached D2, who was an experienced Hong Kong employment agent.  Together, all three conspired to submit a false application to the Immigration Department (“the Department”), in order for D3 to have the services of a helper whilst in Hong Kong.

5.The prosecution case consisted of three witnesses.  PW1 was the domestic helper; PW2 an Immigration officer and PW3, a police officer.

6.There were three sets of admitted facts as against D1 (AF1, 2 and 5) and a number of documentary exhibits.  Those parts of the admitted facts[1], which are relevant to this hearing, prove that:

(a)   On 2 June 2015, an Immigration officer examined and granted an application (including P1-13) for the employment of OBALDO Rowena Opinaldo (“Rowena”) as a domestic helper in Hong Kong.

(b)   Between 11 June and 27 August 2015, Rowena worked as a domestic helper at Flat D, 22/F, Block 22, Ocean Vista Laguna Verde, Hung Hom, Kowloon.

(c)   Huang Zhixi and Huang Eric are the daughter and son of D3.

(d)   D1 was arrested and cautioned on 16 December 2015 and said, inter alia, in response

“…Huang Zhizhi is my younger female cousin. I did employ a Filipino domestic helper for her through the company of Ricky Chan. After employing this domestic helper, I have not used her. My younger female cousin was solely responsible for it. I do not know what problem came up while she used this domestic worker.”

(e)   A VRI was taken with D1 on 16 December 2016 and adduced as P15.

(f)   D1 has a clear criminal record.

7.PW1 was the main prosecution witness and was found to be credible and reliable.  She testified under an immunity, although the magistrate noted that she knew nothing about the conspiracy and was not considered to be a party to it.  She had been employed as a FDH in Hong Kong since 2008, but in 2015, she was looking for a new contract.  In April 2015, she had been informed by D2 that she was to attend an interview.  It was with D3.  PW1 attended the interview, at which D2 and D3 were present, which was for a contract of employment as a FDH.  It was D3 who interviewed her about her work experience and that led PW1 to believe that she was going to be working for D3.  D2 confirmed this to her at the time.  PW1 signed the contract of employment on another occasion in the presence of D1 and D2 but not D3.  It was D1 who signed the contract of employment in front of her in the presence of D2.  D2 explained to PW1 that D3 was “not around” and therefore D1 would imitate D3’s signature.  This was okay, he said, because D1 and D3 were sisters.  The contract (P3) was therefore signed by PW1 and D1.  It was accepted in trial that the contract was signed by D1 in her own name.

8.PW2 processed the application (P2) on behalf of the Department.  He gave evidence that he considered the application and supporting documentation.  He said that if any of the relevant information provided had been shown to be false, then he would not have granted the FDH visa.

9.The FDH visa was approved in June 2015 and on 11 June PW1 was shown to the Flat D, 22/F, Block 22, Ocean Vista Laguna Verde, Hung Hom, Kowloon address (“Laguna Verde”), where she worked until 27 August 2015.  D3, her two children and D3’s mother lived at this address and PW1 worked there as the domestic helper.  During that time, she was under the direction of either D3 or her mother.  D1 never gave her any instructions and did not stay at the address overnight during that period.  PW1 said that no personal belongings of D1 were kept at the address.  She was paid in cash by D3 on a monthly basis.

10.In August 2015, D3 asked PW1 to accompany her and her children to the Mainland.  In order to do so, PW1 required a China visa.  She was to apply for the visa with D1, who completed the China visa application form and who signed it.  When PW1 queried this, D1 admitted that she signed her own name as PW1’s employer on the contract of employment.  PW1 queried this with D2, who once again said that D1 and D3 were sisters.  PW1 travelled to the Mainland with D3 and the children but was concerned when D3 took her passport from her.  As a result, she rang D2 and D2 promised that her passport would be returned.  It was.

11.PW1 returned to Hong Kong on 25 September 2015 as her China visa was about to expire.  It was D2 who asked PW1 whether she was prepared to return to the Mainland and if not, her contract of employment would be terminated on one month’s notice.  PW1 told both D1 and D2 that she did not wish to return to the Mainland as D3 was not her contractual employer.  D1 asked PW1 to sign a termination notice and gave PW1 one month’s salary in lieu if notice in the presence of D2.

THE DEFENCE CASE OF D1

12.D1 gave evidence.  She had been in Hong Kong approximately 20 years by the date of trial and had been an operations manager with an insurance company. She was a licensed insurance agent.  As such, she accepted that she was in the business of ensuring customers knew the contents and purport of the documents which they signed.  She told the court that D3 was her cousin; that D3 needed a domestic helper to look after her children in Hong Kong when she was out of the jurisdiction and that both D1 and D3 had sought the help of an experienced employment agent， as D1 was ignorant about employment law in respect of the engagement of a FDH.  According to D1, she had told D2 that D3 had a two‑way permit and that she wanted to engage a domestic helper to take care of D3’s children.  She said it was D2 who advised D1 to be the registered employer of the FDH and she trusted that advice was lawful.  D1 said that she had told D2 that D3 lived at Laguna Verde.  She had never told D2 that she resided there but she did, in fact, go there from time to time to look after the children when D3 had gone to the Mainland.  She confirmed that her permanent address was 6/F, 250 Prince Edward Road West (“Prince Edward Road”).  She said that she had never told D2 that the children were her own but she did regard herself as the employer of PW1 as she regarded Laguna Verde as her maternal home.  In particular, she stated that she had signed a blank application form (P2) and a blank contract of employment (P3) and she had not read their contents at any stage.

THE DEFENCE CASE OF D2 AND D3

13.D2 gave evidence.  He said he had run an employment agency since 2009.  He had helped D3 find a previous FDH in October 2014.  D3 had completed D5, and later P25 in respect of Rowena, to that end.  D3 had handed P25 over to him when she visited him with D1 (which D1 denied).  D1 and D3 then provided further information to him and P25 had been amended by D2.  The first employment application had been signed blank but D2 had thereafter completed it in accordance with the information provided in D5.  In March 2015, it was D1 who had informed D2 that the first FDH (“Jemaica”) had been sacked.  They needed a new FDH.  D2 accepted that D3 had interviewed PW1 but it was D1 who had decided to hire her and had signed the contract (P3).  D2 thought that D1 was to be her employer.  He had used P25 to complete the application (P2) and the contract of employment (P3).  D2 denied knowing that D3 was unable to employ a FDH.  He also denied helping them by providing a solution.  In answer to the allegation made by PW1 as to his knowledge of the situation and his suggestion that he had told PW1 that D1 and D3 were sisters, D2 suggested that PW1 still owed his firm some money arising out of a loan which she had failed to repay.

14.D3 gave evidence.  She was a university graduate and an editor of TV programmes.  She said the two children were hers and born in Hong Kong and that Laguna Verde was her home.  She was a two‑way permit holder.  It was D1 who had suggested that she employ a FDH.  D3 had originally found the contact details of D2 and had provided them to D1 and D1 had later told her that D2 had said it was lawful to hire a FDH to look after D1’s nephew and niece.  D1 and D3 had met D2 in his office in late 2014, at which time she had provided D2 with her own two-way permit, the birth certificates of the children and also D1’s HKID.  She denied completing D5 or P25 and she did not hand D5 over to D2.  Thereafter D3 said Jemaica was employed.  She also denied handing over P25 to D2 in respect of the employment of Rowena.  As for PW1, D3 accepted that she had not told PW1 that D1 was to be her employer when D3 first interviewed her.  She accepted that she had paid the monthly salary to PW1 but that D1 had paid her the month’s salary in lieu of notice.  It was not put to her that she had been reimbursed for this by D1.  She said she trusted D1 and D2 and had no idea about the law or procedure in respect of the hiring of a FDH.

THE GROUNDS OF APPEAL

15.The appellant was initially represented by the now late Mr Kevin Egan, who drafted the Grounds of Appeal.  However, Mr Martyn Richmond appeared on the appeal.  He adopted the two Grounds of Appeal advanced by Mr Egan. They were:

“Ground One

The magistrate erred in both fact and law in convicting the appellant on the charge of conspiracy because on the available evidence there was insufficient for the magistrate to conclude beyond reasonable doubt that the appellant was a party to a criminal– meeting of minds, an essential ingredient of a charge of conspiracy. Such a conclusion, based as it was on circumstantial evidence, simply failed the test so eloquently propounded by Lord Diplock in R v Kwan Ping Bong & Another [1979] HKLR 1 at 5 when his Lordship said –

‘There is no principle in the criminal law of Hong Kong more fundamental than that the prosecution must prove the existence of all essential elements of the offence with which the accused is charged – and the proof must be “beyond all reasonable doubt”, which calls for a degree of certainty considerably higher than proof on a mere balance of probabilities. The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling – one (and the only one) that no reasonable man could fail to draw from the direct facts proved.’

Ground Two

In reaching his verdict of guilty the trial magistrate further erred in both fact and in law in that he allowed himself to both speculate and make assumptions about matters of evidence that were critical for him to find if he were to render a guilty verdict.  This was also a material irregularity in the proceedings and collectively these errors by the trial magistrate rendered the conviction unsafe and unsatisfactory.”

16.Mr Richmond adopted the Grounds of Appeal outline above and submitted that he had two basic points.  The first that there was insufficient evidence to show a criminal meeting of minds and the second that the magistrate drew unfounded inferences amounting at best to speculation.  In argument, they were really one and the same point.  That contention, he said, did not turn upon the magistrate’s findings as to the credibility of PW1.  Even if she were found to be a credible witness, the prosecution case fell short of a finding that the only reasonable inference which could be drawn was that there was a criminal meeting of minds.  For this contention, Mr Richmond submitted:

(i)   PW1 was unable to understand Chinese and therefore she would have been unable to understand what had passed between D1 and D2 in Chinese in her presence.

(ii)   PW1 gave evidence that D2 had spoken to her in English and that D1 did not participate in the discussion.  There was only one occasion on which D1 spoke to PW1 in English, which was not a detailed discussion.

(iii)   Forms were passed from D2 to PW1 for her signature but she could not confirm whether they were blank or not.

(iv)   When PW1 had realised that it was D1 who had signed the contract of employment, she had spoken with D2 to query it and it was D2 who explained that D1 and D3 were sisters and there was nothing to worry about. D1 did not tell her this.  It fails to form the basis from which evidence of an agreement could be improperly inferred.  It was not evidence in furtherance of a conspiracy because D2’s representation to PW1 that this may be a proper contract had first to be found proved.  Thereafter an inference needed to be drawn and it was not the only reasonable inference to be drawn given the evidence from D1 and D3.

(v)   There was no evidence prior to the signing of the agreement from which a meeting of minds could be proved.

(vi)   D1 and D3 said that they approached D2 for advice upon how to obtain a FDH lawfully, there was therefore no mens rea as to the ultimate offence.

(vii)   The court must look at proven facts - that suggestion is supported by para 87 of the Statement of Findings (p106) in which the magistrate said:

“D3 was highly suspicious as she tried to distance herself from the helper during the cautioned interview and lied in court. She was the one who benefitted from the special arrangement, but I am not sure if the prosecution has proved beyond reasonable doubt each and every particulars of the offence, in particular submitting or causing to submit the application in question which contained false information.”

The question of knowledge falls for consideration.  If the magistrate had been satisfied D3 caused to submit false information knowing that information was to be used to defraud the Department, then presumably he would have found that that knowledge pre‑dated the agreement to pursue that course of action i.e. predated the meeting at the restaurant where the document was signed.  It should be inferred from what he said at paragraph 87, that he could not be satisfied of a criminal meeting of minds simply because there was no evidence that D3 actually submitted or caused to be submitted any document.

17.D1 submitted that the court simply needed to look at the findings of fact from which the magistrate drew inferences and whether those findings of fact were a sufficient basis for drawing the only reasonable inference i.e. that there was a meeting of minds between at least two people.  As this is a re-hearing on the papers, I venture to suggest that it is for this court to look at all of the evidence and decide for itself whether it can make any findings of fact sufficient to prove the case directly or by reason of the drawing of any appropriate inferences.

THE LAW

The Procedure on Appeal

18.An appeal under section 113 of the Magistrates Ordinance, Cap 227, is by way of rehearing of the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power so to do (section 118(1)(b)): Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70.  It allows the judge on appeal to make whatever order the judge thinks just (section 119(1)(d)).

19.On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standard: HKSAR v Ip Chin Kei & Others HCMA 301/2011.  It follows, that the appellate court is also required to ensure that all proper safeguards were put in place as to the admissibility of such evidence as was relied upon by the court below.

20.This court is entitled, and indeed bound, to come to its own conclusion about the evidence on contested issues of fact and law.  Per James J in Histollo Pty Ltd v Director-General National Parks & Wildlife (1998) 45 NSWLR 661:

“It is not incumbent upon the appellant to show that such conclusion [whether at half time or on verdict[2]]was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the rehearing there is a reasonable doubt of guilt, the appeal must be upheld.”

21.Because this is a rehearing upon the evidence as it was before the deputy magistrate and is not a retrial, there are practical constraints placed upon the court in the exercise of its duties in making findings of fact and determinations in respect of the credibility of witnesses: HKSAR v Ip Chin Kei & Others supra.  So far as the facts are concerned this court recognises that it does not have the advantage of having received evidence at first hand whichthe deputy magistrate enjoyed.  The same applies to the opportunity to see and hear the witnesses.  To offset that constraint the court is entitled to have regard to the deputy magistrate’s Statement of Findings to ascertain what determinations the deputy magistrate made as to the credibility of witnesses and the reasons given for such determinations.  It also follows that this court should be able to look to the Statement of Findings to seek, if possible, to explain any anomaly as to issues of admissibility and procedure.

22.As this is a rehearing, it is for the appellant to persuade the court that the prosecution should not have succeeded in the court below as there is a reasonable doubt as to her guilt.  It is therefore then for the prosecution to persuade the court that this is not the case.  Following Lam Kau v R [1962] HKLR 234:

“It is as much for the Crown to sustain as for the appellant to seek to disturb the conviction”.

That does not mean that all of the evidence before the magistrate is repeated once more in this court.  Only that evidence which the parties determine is necessary to satisfy the burden placed upon them is required to be revisited.

23.The evidence in this case in so far as it relates to D1, rested predominantly upon three sets of Admitted Facts (AF1, 2 and 5), P2, P3, P25, P15 and D1 herself; one prosecution witness of fact (PW1) and the Immigration officer who approved the application (PW2).  There were 30 prosecution exhibits, seven defence exhibits and five sets of admitted facts in all.  PW1’s evidence was pivotal.  This court would be slow to reverse the finding of the deputy magistrate as to the credibility of a witness unless satisfied that his conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.

Analysis of the Law and Evidence

Conspiracy

24.Section 159(A) of the Crimes Ordinance Cap 200 states:

“(1) Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either —

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.”

25.An allegation of conspiracy therefore requires an agreement to commit an offence by two or more persons, which in this case would be an agreement to apply for a FDH visa based upon false information, and that the parties to the agreement must intend that such agreement should be carried out in accordance with their intentions.  If that is so, the offence is complete and nothing more need be done in order to make the conspirators liable under section 159(A).  The mental element of conspiracy includes the intention to pursue a course of conduct which will necessarily amount to the commission of the crime in question by one or more of the conspirators.  The conspirators must intend to carry out the act prohibited by the substantive offence and that intention must satisfy the mental element required under the substantive offence although that does not necessarily mean that the mental element for the offence of conspiracy is in all cases exactly the same as the mental element for the substantive crime, although in this instance it is.

The Relevant Evidence

26.D1 accepted both her post record (P14) and her VRI (P15) as being evidence of the truth in her testimony in trial.

27.Under the post record at P14, D1 accepted that she had said:

“I did employ a Filipino domestic helper for her through the company of Ricky Chan. After employing this domestic helper, I have not used her. My younger female cousin was solely responsible for it. I do not know what problem came up whilst she used the domestic worker.”

28.With the VRI P15, D1 said the following:

“Ctr 32: How can it be called conspiracy to defraud? I just wanted to employ a domestic helper. How would I conspire with that Mr Chan? How? I didn’t need to conspire, I only employed a domestic helper.

Ctr 36: I should have seen it [P2] because it’s my signature.

Ctr 428: There was no such information, no information at all (re P2). If he wrote such things, I wouldn’t have signed because it’s not true.

Ctr 330: Well, I thought that we, if the kids were not living here anymore, well, we no longer need to employ a domestic helper (as to why Rowena left)

Ctr 418: To employ a domestic helper, its necessary to provide this information, like who was living where.  Well, as to my cousin, me and the two children, my cousin most probably provided the permit and the Mainland identity card to him, while I also gave him my identity card.  For the children it seemed to be the birth certificates or something. Anyway, the identity card numbers were on it.”

29.D1 also accepted in her VRI that:

(i)   She had employed the domestic helper through D2.

(ii)   The domestic helper was employed to look after the children of her cousin.

(iii)   Huang Zhizhi was her cousin.

(iv)   The children, Eric and Cici, were not hers but her cousin’s.

(v)   She had been clear about the relationship with D2 i.e. that they were her nephew and niece.

(vi)   She employed the FDH because her cousin did not have a HKID and had to return to China to renew her permit from time to time.

(vii)   Her cousin rented Flat D, 22/F, Block 22, Ocean Vista, Laguna Verde, Hung Hom and lived there with her two children.

(viii)  She agreed she signed a contract at Maxims and perhaps something else, but nothing was filled in.

(ix)   That was the only time she had seen P2 (and most probably P3).

(x)   She would not have signed P2 as it now is because it is not true.

(xi)   The FDH worked at Laguna Verde.

(xii)   D3 spoke to her in English and if Rowena spoke slowly then D1 could also understand her English.

(xiii)  D1 went with the FDH to obtain a China Visa, “both the employer and employee had to go”.

(xiv)  The FDH would be paid in cash by either D1 or her cousin, it would depend on who was around.

30.She further stated, in summary, that she had to help her cousin out when her cousin was in the Mainland and therefore the employment of the FDH was to allow D1 to be able to work because someone else was looking after the children.  When they went to D2, D1 had told D2 about the terms of employment, which included to look after the children, to clean etc and she also told him the address.  Rowena had only worked a few months because her cousin had decided to take the children back to the Mainland and remain there so they did not need her anymore.  She also suggested that Rowena had wanted a longer termination date because she had a hospital appointment to attend on 24 November 2015 but she had refused.  She suggested it was possible that Rowena was seeking revenge.

31.D1’s evidence in trial has to be viewed with a degree of caution as Mr Egan led her on many occasions and was not stopped from doing so.  I have placed less weight upon that evidence as a result. In chief, D1 maintained that this was the first time she had employed a FDH (she seems to have forgotten the FDH immediately before Rowena).  She said this was why she did not understand the law in this regard.  She said she had told D2 everything about D3’s residential status and provided her cousin’s permit, birth certificate and her own HKID but that she knew she (D1) was to be the employer.  She believed it to be legal, (after being led) on the basis of what D2 had told her.  She accepted her permanent address was 6/F, 250 Prince Edward Road West and not the Laguna Verde address.  She said she had told D2 this was her cousin’s address.  She did not tell D2 that she lived there and she did not tell D2 that the children were hers.  She said she had no idea any of these false representations were to be made.  She had signed a blank P2 and P3.  She had done so because she was in a restaurant at the time.  She eventually received a copy of the employment contract P3 but did not check its contents.

32.Under cross examination, D1 admitted she had employed a previous FDH with D3 and on that occasion as well, she had signed blank documents.  She had been given a copy of the contract of employment on that occasion as well.  She had not read it because it was in English and she cannot read English.  She also admitted to having her own FDH at her own address but her husband had hired her.  P25 was not completed by D1, she had never seen the document.  In answer to prosecuting counsel she said she had been employed as the operations manager for Prudential Insurance since 2012, selling insurance policies.  Apart from that, D1 had a separate company under which she operated an investment, financial services and risk management business.  In respect of her employment with Prudential, she agreed she would explain the terms of a document clearly to a client and warn the client about the liability or duties arising from signing such documents.  She also accepted that she would never ask a client to sign a blank document.  This was because legal liability may arise from incorrect information.  Somewhat confusingly, she said she did also live at the Laguna Verde address even though her residence was in Prince Edward Road.  She would do this five to six days every three months.  When pressed upon whether she considered the Laguna Verde address as her residence, she maintained that it was a communal place because she had a key.  She was adamant that it was also “her place” but she also said that she had not left it to D3 to employ the FDH because she knew D3 did not have a HKID and therefore could not employ one, “that was common sense”. D1 had spoken with D2 because they spoke in Punti.  D2 had explained the information required and the fees.  For the first FDH contract she had signed a blank form and even though there was both English and Chinese upon it, she had not read the Chinese part at the time that she signed it.  She believed that he would complete the form according to the information she had given him but was not clear about the fact that the form was to be submitted to the Immigration Department and was aware that the salary had not yet been filled in.  She was well aware before either FDH had been hired, about salary and vacation leave etc but disagreed that she knew that the FDH had to live at the address of the employer.  As for the Town Gas bill for the Laguna Verde property, which was in the name of D1 and not D3, that had come about because D3 was not in Hong Kong at the time of application for provision of a gas supply to the property.  Also, as D1 was not there, D3 would pay Rowena in cash and D1 would give D3 money for that.  She said she “probably” knew about the restriction on D3 employing Rowena and that even if D3 could have employed Rowena, D1 may nevertheless have done so, because it did not make much difference.

33.Even on D1’s own account, there was more than sufficient evidence from which the magistrate could find proved beyond reasonable doubt that D1 had employed a FDH for her cousin and had no intention of using the FDH for herself with the knowledge that her cousin was not in a position to employ the FDH in her right.

34.As the magistrate found that D1 had conspired with D2, the relevant parts of D2’s evidence are as follows:

(i)   D3 contacted D2 for the first time on 12 October 2014.  She wanted to find an FDH to look after her children.

(ii)   On 14 October 2014 he introduced her to Jemaica.  At that point D3 said she was looking for a FDH for a relative and D2 told her the employer must attend.

(iii)   He gave her an employer declaration form to complete D5 in respect of Jemaica (same as P25).

(iv)   P25 in respect of Rowena was given to him by D3 but included D1’s particulars as D1 was to be the employer.

(v)   He had to fill in some extra information eg the size of the house.  He got some of that information from D1 but could not recollect who gave him the rest.

(vi)   He did not know the relationship between D1 and D3.

(vii)   He had asked D1 to sign blank documents.

(viii)   It was D1 who informed him that they needed a new FDH.  D3 met Rowena first and then D1.  No new documents were needed.

(ix)   D2 believed all long that D1 was the actual employer and D3 was simply helping her out by interviewing Rowena.

(x)   He did not know D3 was a two way permit holder.

(xi)   PW1 had called him but had not told him that she had previously thought D3 to be her employer but had found out it was D1.  He agreed that he had received a call from the Mainland when PW1 had complained that D3 had taken her passport.

35.I was not provided with a transcript of the evidence of D3 given in the court below as she was acquitted.  However, I do have a transcript of cross examination on her behalf and the Statement of Findings and can ascertain the following.  It was D1 who suggested that she employ a FDH.  It was D1 who said it was legal to hire a FDH.  She had gone with D1 to see D2 when Jemaica was employed.  She had provided her two‑way permit and the children’s birth certificates.  She had no involvement with either D5 or P25.  D1 did sleep at D3’s address from time to time and did keep some belongings there but did not have an access card.  D3 had not told PW1 during her interview with her that D1 was to be her employer.  She had paid Rowena in cash but had not paid her one month’s salary in lieu of notice.  That had been paid by D1.

CONCLUSION

36.At a rehearing the appellate court is required to assess the evidence and come to its own conclusion as to whether the prosecution has proved the elements of the offence charged[3]. The essential elements of conspiracy to deal in the proceeds of an indictable offence are:

(i)   an agreement;

(ii)   between two or more persons;

(iii)   to submit false information to an officer of the Immigration Department;

(iv)   intending that one or other of them would carry out the commission of the offence to which they had agreed.

37.The evidence of D1, D2 and D3 was inconsistent with one another.  It was open to the magistrate and to this court to decide who is telling the truth and who is not.  I concur with the findings of the magistrate in that respect. None of the defence witnesses were telling the whole truth.

38.This matter does not turn upon the use of language or even if P2 and P3 were signed in blank.  D1 accepted that she had signed P2 and P3 and even if they had been blank at the time of signing, she knew full well what they were and that they were in respect of the employment of a FDH for her cousin D3.  She admitted that she did not live at Laguna Verde and she admitted that the children were not her children.  All of the relevant representations made within P2 and P3 were therefore false.  Did she know P2 and P3 had been submitted in that form?  Did D2 know that they were false?  Like the magistrate, I take the view that someone as educated as D1 and in her line of business would not have taken such a cavalier attitude to the documents submitted in her name, nor do I accept her English was that poor.  She must have known what she was doing at the time, which is exactly why she allowed herself to be named as the employer when the helper was never going to work for her.  The substantive offence is clearly made out.  On the direct evidence.  That is not a question of inference.  The question is therefore whether D2 was complicit?  Was there an agreement between them to submit false documentation to the Department and if so, at what stage?

39.The agreement would have to have been prior to the completion of P2 and P3.  P25 suggests that D2’s procedure is to obtain all necessary information before the completion of P2 and P3.  It is likely therefore that any agreement with D2, took place at the stage of the completion of both D5 and P25, as one was supplemented from the other.  It is interesting to note that neither D1 or D3 accepted they were the authors of its contents (or even part of its contents) or that they handed it over to D2.  How D2 came to be in possession of the facts contained within P25, upon the case of D1 and D2, is a mystery and therefore one of the few areas in which the magistrate would have drawn the irresistible inference that they both provided the necessary personal information and documents at some stage.   But this appeal does not turn on this point either.  In whatever manner D2 came by those facts (and he could not have simply made them up), I take the view that it was a sensible way to record necessary facts in his business and was not compiled purely for the purpose of the trial as suggested by counsel for D3.  Did D1 and D3 lie to him?  Was he also duped as he says he was?  PW1 maintained that D2 represented to her that D1 and D2 were sisters and that therefore it was acceptable for D1 to sign on behalf of D2 i.e. to imitate her signature and later it was D2 who negotiated the release of PW1’s passport from D3 not D1, when PW1 found herself in China.  When PW1 told D2 she no longer wished to accompany D3 and her family to the Mainland because D3 was not her contractual employer, it was D2 who told her that she would be terminated.

40.There was no need for the magistrate to draw any inferences in this case save for the obvious one of whether there was a meeting of minds.  He, and I, reject the evidence of D1 and D2 and accept the evidence of PW1.  D1 knew exactly what she was doing and went to the lengths of providing a town gas bill for a property she did not live in.  D2 also knew the ruse, because he lied to PW1 and he did so, at the outset, during the interview in the restaurant and maintained the illusion thereafter.  There were a number of proven facts which overwhelmingly suggest that D1 and D2 both intended to defraud the Department and that they did so in a joint scheme for which D2 was paid and D3 gained an employee.

41.As to the suggestion that the magistrate acquitted D3 and therefore this court should infer that there could not have been a meeting of minds as between D1 and D3, this court’s understanding of his reasoning differs from that of the appellant.  The court’s understanding of his reasoning is that, although she was substantially implicated, the magistrate was not sure beyond reasonable doubt that she really understood the system.  In order to find a conspiracy to carry out a substantive offence, the magistrate had to be sure that, at the moment of the agreement, D3 knew what the substantive offence was and intended to commit that substantive offence.  It was not a conspiracy to employ a FDH but a conspiracy to submit false documentation to the ID.  Whilst the magistrate did not find that part was made out beyond reasonable doubt because of her background, he nevertheless believed her to be complicit in an agreement to employ a FDH.  By contrast, D1 was a business woman and would have known the process and D2 was in the business of seeking employment visas for FDHs.  Neither were ignorant of the system and on D1’s own admission, she purported to be the employer knowing full well she was not.

42.Accordingly, this appeal against conviction is dismissed with costs to the Respondent.

Mr Franco Kuan, SPP of the Department of Justice, for the respondent

Mr Kevin Egan, instructed by SH Chan & Co, for the appellant (on 16 April 2018 only)

Mr Martyn Richmond and Mr Kelvin Man, instructed by SH Chan & Co, for the appellant (on 21 August 2018 only)