HKSAR v. Osias Myrna Q

DCCC 1168/2018

[2019] HKDC 1004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1168 OF 2018

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REASONS FOR SENTENCE

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1.The defendant was charged with 9 charges of “Conspiracy to defraud”, contrary to Common Law and sections 2(3) and 4(2) of the Criminal Jurisdiction Ordinance, Cap 461 and punishable under section 159C(6) of the Crimes Ordinance, Cap 200; 8 charges of “Using copies/a copy of false instrument(s)”, contrary to section 74 of the Crimes Ordinance, Cap 200 and 1 charge of “ Possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, Cap 200.

2.The defendant pleaded guilty to a total of 11 charges, namely 6 charges of “Conspiracy to defraud” (Charges 1, 2, 3, 4, 5 and 7), 4 charges of “Using a copy of a false instrument” (Charges 11, 12, 16 and 17) and 1 charge of “Using copies of false instruments” (Charge 15). 

3.Upon the defendant’s guilty pleas to the 11 charges, the prosecution asked for the remaining charges be kept in court file, not to be proceeded without leave of the court and the Court of Appeal.

BRIEF FACTS

4.The defendant was the sole proprietor and licensee of an employment agency named “D’Sun Employment Services”.  D’Sun Employment Services handled employment contracts with foreign domestic helpers (“FDH”) and submitted visa applications with the Immigration Department to facilitate the approval of the employment visas and extension of visas in Hong Kong.

Charges 2, 5 and 7

5.In 2011, a Filipina named Cathy called the defendant and asked her to find an employer for ALMAYDA Maria Isabel Martin (S1) and to make a domestic helper visa for S1 to stay in Hong Kong.  For reasons unclear, instead of finding a real employer and making a proper application with the Immigration Department, a mainlander named Chan Kan (“Chan”) was asked to provide bogus FDH employment contract, financial and residential proof at HK$30,000 to facilitate the application.

6.Cathy agreed to the arrangement and Chan provided to the defendant with a copy of the bogus employer’s identity card, financial and residential proof and a signed employment contract. 

7.The defendant successfully applied for a FDH employment visa from the Immigration Department for S1.

8.Cathy then paid HK$30,000 to the defendant who kept HK$10,000 as her commission and gave HK$20,000 to Chan.

9.In 2013, S1 asked the defendant to arrange an extension for her visa and told her that she would not be working for any employer in Hong Kong and just wanted to get a visa to stay in Hong Kong. 

10.The defendant referred S1 to Chan and the defendant again received bogus documents to be submitted to the Immigration Department for an extension of a FDH employment visa.  The application was successful. 

11.The same method was used in 2015 to process S1’s application for a second extension of a FDH employment visa.  The application was also successful.  The defendant was paid HK$10,000 as commission for each visa application.

Charges 1 and 3

12.Chan also asked the defendant to process the FDH visa application for ALCANTARA Ludivina Cornesta (S5) in 2011 and the extension of S5’s FDH visa in 2013 using the same method of submitting bogus documents to the Immigration Department.  The defendant received HK$10,000 for each application.

Charge 4

13.In 2013, a Filipina ARTATES Mary Ann Belaniso asked the defendant to process a FDH visa for her to stay in Hong Kong.  S2 also made the same arrangement with Chan in providing bogus documents for submissions to the Immigration Department via the defendant.  The application was successful.

Charges 11, 12, 15, 16 and 17

14.The defendant processed a FDH employment visa application for SIEW Chee Wee (E9) as employer and MABBORANG Venue Corpuz (S11) as the FDH on 2 November 2106 using a copy of the payment advice purportedly issued by Cable TV. (Charge 11)

15.The defendant also helped her daughter HUNG Wing Yan (E8), her daughter’s two friends, namely MOK Sze Man (E3) and YUEN Kwok Wing (E4) to make false residential and financial proof in their names to be submitted to the Immigration Department for their applications for FDH employment visas. (Charges 12, 15, 16 and 17)

16.As E3, E4, E8 and E9 could not provide income and residential proof in support of their applications, so the defendant assisted them by asking her assistant Lucy in the agency to make false instruments in support.  The defendant gave Lucy her I-Cable statements, bank statements and electricity bills as template to make false instruments by cutting and pasting the false information onto the templates before making colour copies.

17.For E3, the defendant has processed two FDH employment visa applications for E3 as employer and CORONEL Snooky Yema (S3) and S2 as FDH on 9 August 2017 and 12 October 2017 respectively, using false financial and residential proof. (Charges 16 and 17)

18.Other than Charge 16, the application of which was refused by the Immigration Department, all the other applications were successfully made.

THE DEFENDANT’S BACKGROUND AND MITIGATION

19.The defendant is 55 years of age with a clear criminal record.  She has two daughters, now all grown up.  They are very supportive of the defendant and were present in court for her.  I have no doubt that the defendant is good mother to her two children.

20.She had two failed marriages which left her destitute.  She was left alone to take care of her two, then young daughters.  She went through a lot of financial difficulties, and at one stage, had to work as a dish washer to make ends meet.  She suffered from skin problem, Vitiligo and depression.

SENTENCING CONSIDERATION

21.That said, the offences which the defendant committed were serious ones.  In DCCC 1167/2011 HKSAR v Mendoza Zenaida Tabilog and anor, HH Judge S D’Almada Remedios, (now High Court Judge) wrote in paragraphs 17 to 21 as follows:-

“17.  Immigration regulations and Immigration officers’ duties are an important safeguard in the proper and legal employment of persons in Hong Kong.

18.  Immigration Department deal with many thousands of applications nowadays for the employment of domestic helpers, whether they be new applicants or applicants extending their visas.

19.  What the defendants were doing was defrauding a government department in dishonestly representing that these domestic helpers would work as helpers when in fact, there was no intention that they would do so. They would have taken employment in other fields.

20.  The main purpose of the restrictions on their visas is to prevent them from working in the community illegally. The defendants were paid by those persons. It is difficult in most cases for the authorities to uncover the deception.

21.  This is clearly a very serious offence and precedent shows that an element of deterrence in sentences must be passed.”

22.I cannot agree more to be above comments. 

23.As for the imposition of financial/income proof and residential proof from employers in support of their applications by the Immigration Department, is to ensure that the employers do have the means to pay for the salary and to provide reasonable accommodation to the FDH.  By submitting false financial/income proof and residential proof to the Immigration Department, it undermines their aim to protect the FDH.

24.Having said, I accepted that other than the occasions in the present proceedings which bogus applications had been made, the defendant’s employment agency had also carried out legitimate business.

SENTENCE

25.I consider a global starting point for all the offences should be one of 36 months’ imprisonment.  Giving the defendant her full 1/3 discount, her sentence should be one of 24 months’ imprisonment.

26.In order to achieve this, I made the following order:-

(1)  The starting point for Charges 2, 5 and 7 be of 24 months’ imprisonment and reduced to 16 months after the 1/3 discount, all to be served concurrently;

(2)  The starting point for Charges 1 and 3 be of 24 months’ imprisonment and reduced to 16 months after the 1/3 discount, with 6 months to be served consecutively and the remaining terms to be served concurrently to Charges 2, 5 and 7;

(3)  The starting point for Charge 4 be of 21 months’ imprisonment and reduced to 14 months after the 1/3 discount, with 2 months to be served consecutively and the remaining terms to be concurrently to Charges 1, 2, 3, 5 and 7.

(4)  The starting point for Charges 11, 12, 15, 16 and 17 be of 9 months’ imprisonment and reduced to 6 months, the terms of which to be served concurrently with Charges 1, 2, 3, 4, 5 and 7.

27.The defendant is sentenced to 24 months’ imprisonment for all the charges.