HKSAR v. Bantasan Criselda Molang and Another

DCCC 236/2018

[2020] HKDC 635

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 236 OF 2018

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REASONS FOR SENTENCE

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1.D1 pleads guilty to charge 1, Conspiracy to use copies of false instruments, contrary to sections 74, 159A and 159C of the Crimes Ordinance, Cap 200.

2.D2 pleads guilty to charge 2, Conspiracy to use copies of false instruments, contrary to sections 74, 159A and 159C of the Crimes Ordinance, Cap 200.

Facts of the case

3.This case involves 2 defendants, both D1 and D2 are Filipino nationals, and had been working as domestic helpers in Hong Kong, the prosecution case against them as it unfolds, is quite similar in nature in terms of factual background.

4.If Filipino domestic helpers wish to travel to the UK with their employers, they need to apply for a visa from the UK Visa Application centre (“the Centre”) of the British Consulate in Hong Kong, an appointment will be made with the Centre for the submission of the supporting documents, these documents will be sent to the British Consulate in Manila, Philippines for processing.

CHARGE 1

5.On 1st April 2016, D1 went to the Centre in person to submit her supporting documents to the staff of the Centre for the purpose of applying for an overseas domestic helper visa to the UK.  As it turned out, all these documents were false, namely:-

(a) One copy of an ANZ Bank Statement of Cheng (“PW1”) dated 11 March 2016;

(b) One copy of a letter to the “British Consulate Hong Kong” by PW1 dated 31 March 2016;

(c) One copy of an Employer’s Statement by PW1 dated 1 April 2016;

(d) One copy of an Australian Passport numbered N215XXXX in the name of PW1;

(e) One copy of an Australian Passport numbered N627XXXX in the name of NG Charmaine Oi-yau (PW1’s daughter); and

(f) One copy of an Overseas Domestic Worker Contract between PW1 and the 1^st defendant dated 1 April 2016.

6.D1 was arrested on 24 May 2016 by the Immigration Department, and under caution D1 said, in gist,

(1) D1 learnt that she could earn more money working as domestic helper in the UK, and she came to know, (1) a Filipino female Aina Suarino, (2) a black male Ronie and (3) a Chinese female Ms Chan, that they could help D1 in her application for a UK visa.

(2) In September 2015, D1 contacted Aina and learnt she was the secretary of Ronie whom had a company in the Philippines. D1 was asked to pay PHP300,000 (about HK$50,000) for their help with the visa application.

(3) In October 2015, she remitted about HK$16,000 in Peso to Aina and was asked to provide photographs of her employer’s ID card and passport of her employer’s children, D1’s old and new passports, ID card and her employment contract.

(4) In December 2015, D1 met with Aina and Ronie in the Philippines.

(5) In January 2016, D1 paid the remaining sum to Aina, round HK$ 32,000 in Peso.

(6) In March 2016, D1 was told an appointment been made with the Centre on 1 April 2016 and requested to pay Aina a further HK$2,000 and HK$1,500 to Ms Chan.

(7) In mid-March 2016, D1 received an email from Aina with a letter to the British Consulate, D1 gave a printed copy to Ms Chan and also paid her HK$1,500.

(8) On 1 April, 2016, D1 met with Ms Chan, Ms Chan gave her an overseas domestic worker contract, D1 found some of the information contained were false, but D1 was told not to worry as Ronie and Aina had done this before and successfully obtained a visa, D1 then filled in the contract at page 7 to 8 and signed it. They went to the Centre and D1 submitted to the staff of the overseas domestic worker contract and other supporting documents.

(9) All the documents submitted to the Centre were prepared by Ania.

(10) Amongst those documents, some were false as referred to in paragraph 5(a to f).

CHARGE 2

7.On 30 April 2016, D2 went to the Centre in person to submit her supporting documents to the staff of the Centre for the purpose of applying for an overseas domestic helper visa to the UK.  As it turned out, all these documents were false, namely:-

(a) One copy of a Dah Sing Bank statement of Wong (“PW2”) dated 5 May 2016;

(b) One copy of a letter to the British Consulate by PW2 dated 28 May 2016;

(c) One copy of an Employer’s Statement by PW2 dated 30 May 2016;

(d) One copy of a New Zealand Passport numbered EA75XXXX in the name of PW2; and

(e) One copy of an Overseas Domestic Worker Contract between PW2 and the 2^nd defendant dated 30 May 2016.

8.D2 was arrested on 9 August 2016 by the Immigration Department, and under caution D2 admitted, and in gist,

(1) D2 learnt that she could earn more money working as domestic helper in the UK from her half sister who lived in the UK, and she was introduced to (1) a female Anna and (2) a male Rony, that they could help in her application for a UK visa.

(2) D2 knew it was difficult to get a visa through legal means, so D2 contacted Anna in April 2016 and sent Anna photo of her ID card, passport and employment contract by email. Anna, then gave her the phone number of one Ms Chan and told D2 to contact regarding her visa application in HK.

(3) In early May 2016, D2 contacted Ms Chan, and Ms Chan confirmed she received her documents and would prepare the necessary documents for her application.

(4) In mid-May 2016, she met Ms Chan and was asked to sign on 2 pieces of paper. On 29th May, she was told by Ms Chan that the documents were ready and an appointment with the Centre had been scheduled on 30 May 2016 for the submission of the documents.

(5) On 30 May 2016, Rony called D2 and reminded her to follow the instructions of Ms Chan. She met Ms Chan on the same day, and Ms Chan gave D2 an envelope containing the false documents, which D2 later submitted to the Centre, D2 was then told to wait for Anna‘s instructions.

(6) These documents were prepared by Rony and Anna and false. Those documents are as referred to in paragraph 7(a to e).

(7) Around HK$50,000 in Peso were paid to Anna and Rony by her half sister.

Mitigation and Sentence

9.Both defendants testified at the trial of Ms Chan, Ms Chan was charged with 2 counts of Conspiracy to use copies of false instruments and 1 count of Possession of false instrument, she was acquitted after trial.  Although both defendants’ evidence were rejected by the trial Judge,  I have confirmed with the prosecution, their evidence played a vital role in the decision to prosecute Ms Chan.  They both testified in line with their respective witness statements.

D1’s mitigation

10.D1 is now 33 years of age, a single mother, her son is now 14 years old.  Her family rely on her support.  She had been working as a domestic helper in HK since 2013.  She is now very remorseful.

11.The reason why she committed the present offence was that She learnt that she could earn more money working in the UK.

12.Solicitor points out that, she was not the mastermind in this case, though she knew the documents were false, but those were not prepared by her, and she herself as a result of her foolishness paid about HK$ 50,000 in Peso to the agency for the UK visa.

13.D1 not only has cooperated with the HK authorities, and that of the Philippines authorities as well.

14.As to her health at present, D1 has been referred to the Division of Neurology for further investigation and management and an appointment has been scheduled for next year.

D2’s mitigation

15.For D2, 49 years old, divorced in 2004, she had a daughter but died in 2012.  She had been working as a domestic helper in HK since 2010, starting from 2012, had been working for the same employer until her working visa was refused by the Immigration Department in 2019.

16.She also blamed herself for her daughter’s death, she committed suicide in 2012 due to her depression, while she was in HK and did not know of her condition and could not be by herself in her hours of need.

17.She often sends money home to support her parents, unfortunately, her father died in 2018 and regrettably she again could not be home.  Her mother is now very sick, it is believed she is suffering from stomach cancer but she has refused further medical examination or medication.

18.It was her half sister who arranged everything and paid for her, D2 was told by her half sister that she had mortgaged her home to pay for her daughter to get a UK visa but at the end it was unsuccessful, the agency would not refund the money to her, but could only do another application for her, her half sister begged D2 to make the application as that she would earn a £1000 pounds a month and to help her to repay her mortgage.  She thought everything was legal until she saw the documents and realised those documents were false, but dared not to withdraw at that moment.  She is now very remorseful.

19.In considering sentence, I do bear in mind the fact that D1 and D2 have a clear record, they both testified against Ms Chan, as I said, had it not been for the evidence of D1 and D2, there would not have been prosecution against Ms Chan.

20.Besides, as to their character, their respective employers and family members have written mitigation letters for them, and they speak highly of the 2 defendants.

21.There is no tariff for this type of offence, the prosecution has very helpfully submitted a authority with similar background for this Court's consideration.

22.In HKSAR v Chan Wang Kwok[1], the appellant pleaded guilty to one charge of conspiracy to make false instruments and 2 charges of conspiracy to use false instruments.  The appellant was sentenced to 14 months’ imprisonment on each of the charges, all of which sentences were ordered to be served concurrently.  The Court of Appeal refused leave to appeal against the sentence.

23.The appellant was in the business of providing emigration to countries overseas service.  In charge 1, the appellant conspired with a District Manager of City College to make false academic certificates and diplomas that would be used by the appellant in support of applications made by his clients for emigration to the Canada.

24.In charge 3 and 4, related to the appellant and his 2 clients.  The appellant prepared and submitted to a Canadian Consulate an Emigration Application Form, which asserted that the respective applicant was possessed of academic qualifications, which assertion was false.

25.The Judge took a global view of all 3 charges and took a starting point of 2 years, reduced it by a third for the appellant' cooperation with the authorities and his pleas of guilty, the sentence was further discounted for 1 month to reflect the offences were said to be stale and his clear record, a further 1 month was discounted to reflect the appellant had spent 36 days in custody in Canada, a total of 14 months' imprisonment was passed.

26.In another case, AG v Ching Wai Fan[2], the defendant pleaded guilty to 5 charges of conspiracy to defraud.  The Judge took 2 years as the starting point, taking into account the facts of the case, her plead of guilty, her cooperation with the authorities, her good character, bearing in mind the totality principle, the Judge sentenced the defendant to 12 months' imprisonment on each charge and to run concurrently.  The AG sought leave to review the sentence but was refused by the Court of Appeal.

27.The conspiracies involved the use of false or forged contracts of employment and other documents furnished to the Immigration Department and the Labour Department in support of applications for domestic helpers from the Philippines for employment visas, extensions of stay and re-entry visas.

28.Initially, the defendant had been assisting her friend, one Mr Chung and Chung's wife in a scheme to arrange bogus contract for Filipino domestic helpers, when Mr Chung and his wife left HK, the defendant carried on this business on her own behalf.

29.Of the 5 charges she was facing, the 1st charge related to her activity when she was operating the business on her own and the other charges related to her activity when the business was operated by Chung.

30.In Chan's case, false documents were used to furnish to Canada Consulate for emigration application. In Ching's case, false documents were used to furnish to both Labour and Immigration Department in HK for domestic helpers’ visa.  These 2 cases share similarity with the present case, one involved international element, the other involve domestic helper visa but targeted to deceive the local authorities.

31.Having considered the above authorities, using false documents to obtain a domestic helper working visa warrants a starting point of 2 years, taking into account of the international element involved, both UK Consulate and the Philippines, in my view, a starting point of 27 months is warranted for.

32.However, I have not overlooked the fact that the role played by both defendants in the present case, they did not run an agency or to arrange the bogus employment contracts, they did not prepare the false documents, their criminality are much lower than the ringleader, in my view, a proper starting point would be one of 14 months for both defendants.

33.Taking into account their clear record and the mitigation letters, and their personal background, I am prepared to further reduce the starting point by 1 month to one of 13 months.

34.Turning to assisting the authorities, as mentioned earlier, the prosecution accepts that both defendants’ had testified in line with their witness statements and as a result of their evidence, prosecution was brought against this Ms Chan, having considered the relevant authority, I am prepared to apply 50 % discount on their sentence.

35.Each defendant will therefore be sentenced to 6 months and 2 weeks' imprisonment.

36.I have further considered whether there is any special circumstance justifying to suspend the sentence, D1 sought to argue, given the background of this case, the assistance given and in particular the personal financial hardship faced by D1, and that she could not work and earn money to take care of herself and her family back home, worst still, the Court proceedings have been greatly affected by COVID-19 and a further delay resulting in a much longer adjournment period and that adds even more so to her mental stress.

37.First of all, if she wanted to testify for the prosecution, I am afraid delay is unavoidable as D1 had to wait until the end of the trial of Ms Chan.  Besides, she would receive a substantial discount in term of her sentence.

38.About COVID-19, everyone is Hong Kong or around the globe is affected by this virus, it is unfortunate for both D1 and D2 to encounter such mishap while pending their sentence, no one would have predicted this to happen, I am very much sympathetic to both of them, however, all matters considered, I do not consider there exists any special circumstances in respect of both D1 or D2 that justifying to suspend the sentence.

39.D1 is sentenced to 6 months and 2 weeks’ imprisonment.

40.D2 is sentenced to 6 months and 2 weeks’ imprisonment.