HKSAR v. Tsedev Alimaa

HCMA 64/2019

[2020] HKCFI 2772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 64 OF 2019

(ON APPEAL FROM STCC NO 3518 OF 2018)

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J U D G M E N T

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1.The appellant was convicted after trial before a magistrate of one charge of Breach of condition of stay while being a person permitted to land in Hong Kong by an Immigration Assistant by virtue of section 11 of the Immigration Ordinance, in that she did contravene a condition of stay in force in respect of herself, namely, she was limited in her stay in Hong Kong until 24 May 2019 or two weeks after termination of contract, which is the earlier, and she did remain in Hong Kong after two weeks after termination of contract on 1 March 2018, contrary to section 41 of the Immigration Ordinance, Cap 115.

2.The appellant appeals against conviction only.

3.At trial, the appellant was represented by Duty Lawyer; here, she acts for herself.

Grounds of Appeal

4.On Form 101, the appellant did not state any appeal grounds.

Prosecution Case

5.Put in its simplest terms, the prosecution case was that the appellant was under the employ of one OLGA in the capacity of a domestic helper.  By virtue of that fact, she was permitted to remain in Hong Kong until 24 May 2019 or two weeks after the termination of contract, whichever was earlier.

6.In March 2018, the Immigration Department received a Form 407E (Notification of termination of Employment Contract with Foreign Domestic Helper) dated 2 March 2018 purportedly signed by OLGA informing the Immigration the contract of employment had been terminated on 1 March 2018.

7.On 30 July 2018, while attempted to depart Hong Kong via China Ferry Terminal, the appellant was prevented from doing so for reason of overstaying in Hong Kong.

8.On 16 August 2018, the appellant was arrested for breach of condition of stay by overstaying.

Defence Case

9.The appellant elected to give evidence. Stripped to its bare bones, the defence case was that one day in mid-February 2018, the appellant found OLGA had put her clothes and belongings in a suitcase outside the door upon her return to the premises.  The appellant waited but OLDA did not respond.  After that day, the appellant could not contact OLGA or return to the premises.  Meanwhile, the appellant did not ask anyone for help but lived with and was supported by a male friend.

10.One day in June 2018, the appellant saw OLGA in Wanchai.  The appellant tried to talk to OLGA but the latter refused and went away.

11.Despite not being able to communicate with OLGA since February 2018, the appellant continued to stay in Hong Kong because she liked the city and she met the Hong Kong man, and also for applying for American visa in June 2018 as OLGA had agreed to give her work in the United States.

12.The appellant did not know if the employment contract had been terminated because OLGA never told her the same orally or in writing, when Clause 10 of the Employment Contract stipulated that “Either party may terminate this contract by giving one month’s notice in writing or month’s wages in lieu of notice.”

Reasons for Disbelieving the Appellant

13.The magistrate disbelieved the salient parts of the appellant’s evidence.  His reasons for doing so are contained in the relevant parts of the Statement of Findings, as follows:

“17. I found the Appellant neither a credible nor truthful witness, particularly as regards she did not know that the employment contract had been terminated after the day in February 2018, for the following reasons:-

(1) She had received University education and had over 10 years of work experience;

(2) After she had been expelled from OLGA’s home, she could not contact OLGA or return to OLGA’s home thereafter;

(3) She therefore could no longer reside in and/or perform work duties at OLGA’s home;

(4) Not only she could not work and reside in OLGA’s home, the Appellant did not receive salary from OLGA after that day in February 2018; and

(5) She could secure provision of accommodation and living necessities from the Hong Kong male Anka apparently seamlessly after being expelled from OLGA’s home, when not residing at OLGA’s home constituted breaches to Clause 3 of the Employment Contract, and paragraph (ii) of Undertaking under her Visa / Extension of Stay Application, see P2.

18. The Appellant said she continued to stay in Hong Kong to apply for American visa in June 2018 is incredible as according to her it was OLGA who agreed to give her work in the United States but with whom she had lost contact since February 2018.

19. …

20. …

21. For the above reasons, I rejected that the evidence of the Appellant and in particular that she did not know that the employment contract was terminated after she had been expelled from and could not return to OLGA’s home.

22. Conversely, in the circumstances, I found that it was the only and irresistible inference that the Appellant knew that the employment contract was terminated after she had been expelled from and could not return to OLGA’s home, in mid-February 2018.

23. Similarly, I rejected her alleged belief as submitted and/or stated in the record of interview (P5) and its certified English translation (P5A) that “A(7): I understood that the employment contract is valid. Because I was not informed of termination.””

My Consideration

14.I have considered all submissions from both sides of the appeal.

15.On appeal, the appellant repeated the argument that OLGA had not notified her of termination of employment contract.

16.Respondent submitted that the magistrate was correct in drawing the irresistible inference that the appellant knew that the employment contract was terminated after she had been expelled from and could not return to OLGA’s home, in mid-February 2018.  The respondent furthered that it is inherently implausible for a domestic helper, after being thrown out by the employer, remained oblivious of her own employment status for 4.5 months without receiving any salary from the employer, and decided not to make any enquiry with or file a complaint to the relevant authority.

17.I agree with the respondent’s above submissions.

18.Before closing, the appellant was being candid when she said that the reason why she appeals against conviction was that she was afraid of not being able to come to Hong Kong again.

19.I can see nothing unsafe and unsatisfactory in the conviction.

Conclusion

20.For the above reasons, the appeal against conviction is dismissed.  I confirm the conviction.

Mr Eddie Sean, SADPP of Department of Justice, for the Respondent

The Appellant appeared in person