HKSAR v. Huang Huei Ting

DCCC 502/2019

[2023] HKDC 67

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 502 OF 2019

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REASONS FOR SENTENCE

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CHARGES

1.The Defendant (“D”)  faces 10 charges.  Charges 1, 6, 10 and 13 are of making a false statement to an Immigration Officer in the due execution of duty, contrary to section 42(1)(a)  of Immigration Ordinance, Cap 115.  Charges 4, 7, 9, 14, 15 and 18 are of using a copy of a false instrument, contrary to section 74 of Crimes Ordinance, Cap 200. 

D’S RESPONSE TO PLEA-TAKING

2.When pleas are taken from her, she either shakes her head, or says she does not understand the charge.  I record pleas of not guilty to all 10 charges. 

3.The defence say she is not fit to stand trial and there is medical evidence to that effect as required by section 75 of Criminal Procedure Ordinance, Cap 221.  I shall refer to it as the “Fitness Issue”.

4.I find that the defence have proved on the balance of probabilities that D is unfit to stand trial.  According to section 75 of Criminal Procedure Ordinance, I shall record a finding that D is under disability. 

5.It is then for the prosecution to prove that D did the act charged against her beyond reasonable doubt.  Eventually the prosecution are able to prove so in respect of all charges.   

PROSECUTION CASE AS PROVED

6.The case involves people such as HUANG HUEI TING (“HHT”), CHEN YEN-CHIN (“CYC”), CHEN YI-MING (“CYM”), and LARGE CHARLES GRAMAE (“LCG”)  respectively.  If an application is made by someone who stated, as for example, one’s name as “HHT”, I would refer to this person as {HHT} to denote that someone adopting a pen name {HHT} is making the application.   That person may or may not be the real HHT.  The same logic holds for {CYM}, {CYC}, and {LCG} respectively. 

7.Our present case relates to 2 sets of charges, ie, making a false statement (Charges 1, 6, 10, and 13)  and using a copy of a false instrument (Charges 4, 7, 9, 14, 15, and 18). 

8.The former set of 4 charges is focused on D’s (Charges 1 and 10), or D’s and another person’s (Charges 6 and 13), 4 applications, each of which contained a representation to the immigration officer that the domestic helper would reside and work at the employer’s stated address.  Investigations revealed that the domestic helper did not work or reside there at all. 

9.The latter set of 6 charges (Charges 4, 7, 9, 14, 15, and 18)  is focused on D’s merging the name page of another person’s passbook with the balance pages of her passbook to produce a false passbook whose copy was submitted in the 6 applications to the Immigration Department. 

CHRONOLOGY OF CHARGES

10.This case relates to 8 applications.  It is easier to understand when the Charges and their relevant events are arranged in a chronological order as follows:

(1)  Charge 18 against D (date of application 14 March 2015 by {LCG});

(2)  Charge 4 against D (date of application 15 July 2015 by {CYM});

(3)  Charges 6 and 7 against D and CYC (date of application 15 January 2016 by {CYC});

(4)  Charge 10 against D (date of application 23 January 2017 by “D”);

(5)  Charge 15 against D and CYC (date of application 11 April 2017 by {CYC});

(6)  Charge 9 against D (date of application 18 April 2017 by {CYM});

(7)  Charge 1 against D (date of application 10 May 2017 by “D”); and

(8)  Charges 13 and 14 against D and CYC (date of application 14 June 2017 by {CYC})

MY FINDINGS

D’s relationship with CYM, CYC, and LCG

11.The application I accept that CYM is D’s husband, CYC is their daughter, and LCG is her godfather. 

Who kept whose passbooks

12.D was amply capable of managing her valuable financial affairs all by herself.  I am satisfied that her 2 passbooks were kept by herself at all material times. 

13.Similarly, I am satisfied that whether it was CYM, CYC, or LCG, each one’s passbook was kept by each self at all material times. 

D’s contact phone number

14.Although it was subscribed in her domestic helper’s name, she had given it to PW13 MCKINNON as her contact phone number on or about 31 August 2016.  From that date onwards, she had adopted it as her contact phone number.  She became its subscriber in 2018. 

Who signed the application or who falsified a copy of a passbook

15.The identity of the person who physically signed or made the application or physically produced the copy of a false passbook is immaterial, as long as the act was done as directed or consented to by D. 

MY FINDINGS APPLICABLE TO EACH CHARGE

Charge 18 against D (Using a copy of a false instrument)

16.In the application dated 14 March 2015, the domestic helper was to work and reside at {LCG}’s address, which transpired to be a property owned by D and LCG.    

17.There was a contact phone number, which transpired to be subscribed to by LCG. 

18.There was a copy of a false passbook produced by merging the name page of LCG’s passbook with the balance pages of D’s passbook Account No 122-6-050092. 

19.As aforesaid, I am of the view that D’s passbooks were kept by herself at all material times.  D’s passbook could not have merged with LCG’s passbook unless D had directed or consented to it for {LCG}’s application.  Whether it was D herself who did, or caused someone to, produce a copy of a false passbook for {LCG}’s application, it is still within the ambit of Charge 18. I find D’s act of using a copy of a false instrument proved beyond reasonable doubt. 

Charge 4 against D (Using a copy of a false instrument)

20.In the application dated 14 July 2015, according to the contract, the domestic helper was to work and reside at {CYM}’s address, which transpired to be a property owned by D and a person called Yu Ying Hui. 

21.{CYM} provided a copy of a false passbook produced by merging the name page of CYM’s passbook with the balance pages of D’s passbook Account No 122-1-040700.  CYM’s bank records showed a stagnant balance of $5,160 - $5,162 since 1 January 2011 up to 1 January 2018. The $2 increase was from bank interest.  There was no activity in this account for 7 years. 

22.{CYM} also provided a copy of CYM’s Hong Kong identity card. 

23.According to movement records of Immigration Department, CYM was out of Hong Kong since 29 April 2013 until 18 November 2022, the last date of the records. 

24.As aforesaid, I am of the view that D’s passbooks were kept by herself at all material times.  D’s passbook could not have merged with CYM’s passbook unless D had directed or consented to it for {CYM}’s application.  Whether D herself did, or D caused someone to, produce a copy of a false passbook for {CYM}’s application, it is still within the ambit of Charge 4. I find D’s act of using a copy of a false instrument proved beyond reasonable doubt. 

Charge 6 against D and CYC (Making a false statement)

Charge 7 against D and CYC (Using a copy of a false instrument)

25.In the application dated 15 January 2016, {CYC} provided a copy of a false passbook produced by merging the name page of CYC’s passbook with the balance pages of D’s passbook Account No 122-6-050092. 

26.There was a copy of CYC’s Hong Kong identity card.  There was a copy of CYC’s Water Bill for the address. 

27.When the application was made, D and CYC had already leased the property to PW1 GARCIA for 2015 to 2017.  It was impossible for the domestic helper to work and reside at the address.  It was a false statement in the application that the domestic helper would work and reside at the address. 

28.As aforesaid, I am of the view that D’s passbooks were kept by herself at all material times.  D’s passbook could not have merged with CYC’s passbook unless D had directed or consented to it for {CYC}’s application.  Whether D herself did, or D caused someone to, produce a copy of a false passbook for {CYC}’s application, it is still within the ambit of Charge 7.  I find D’s act of using a copy of a false instrument proved beyond reasonable doubt. 

29.Whether D herself did, or caused someone to, make {CYC}’s  application, it is still within the ambit of Charge 6.  It was a false statement by D that the domestic helper would work and reside at the address.  I find D’s act of making a false statement proved beyond reasonable doubt. 

Charge 10 against D (Making a false statement)

30.In the application dated 23 January 2017, {HHT} provided 6340 0169 as the contact phone number.  There was a copy of D’s Hong Kong identity card.  There was a copy of Water Bill as address proof.  The property was solely owned by D.  There was a copy of D’s passbook. 

31.PW13 MCKINNON confirms that D personally gave him 6340 0169 as the contact phone number on or about 31 August 2016 when he and D personally signed a tenancy agreement for the property for 2 years until 2018.  He had never heard of DH-7.  DH-7 had never worked or resided there.

32.When the application was made, D had already leased the property to PW13 MCKINNON for 2016 to 2018.  It was impossible for the domestic helper to work and reside at the address.  It was a false statement in the application that the domestic helper would work and reside at the address. 

33.As aforesaid, I am of the view that D’s passbooks were kept by herself at all material times.  D’s passbook could not have been provided unless D had directed or consented to it for {HHT}’s application.  Likewise, 6340 0169 would not have been provided unless D had directed or consented to it for {HHT}’s application.  Whether D herself did, or caused someone to, make {HHT}’s application, it is still within the ambit of Charge 10.  It was a false statement by D that the domestic helper would work and reside at the address. I find D’s act of making a false statement proved beyond reasonable doubt. 

Charge 15 against D and CYC (Using a copy of a false instrument)

34.In the application dated 11 April 2017, {CYC} provided 6340 0169 as the contact phone number.  There was a copy of CYC’s Hong Kong identity card.

35.There was also a copy of CYC’s passbook produced by merging the name page of CYC’s passbook with the balance pages of D’s passbook Account No 122-1-040700. 

36.As aforesaid, I am of the view that D’s passbooks were kept by herself at all material times.  D’s passbook could not have merged with CYC’s passbook unless D had directed or consented to it for {CYC}’s application.  Likewise, 6340 0169 would not have been provided to Immigration Department unless D had directed or consented to it for {CYC}’s application.  Whether D herself did, or D caused someone to, produce a copy of a false passbook for {CYC}’s application, it is still within the ambit of Charge 15. I find D’s act of using a copy of a false instrument proved beyond reasonable doubt. 

Charge 9 against D (Using a copy of a false instrument)

37.In the application dated 18 April 2017, according to the contract signed by {CYM} and the domestic helper, the domestic helper was to work and reside at {CYM}’s address, which transpired to be a property solely owned by D. 

38.{CYM} provided 6340 0169 as the contact phone number. 

39.{CYM} also provided a copy of a false passbook produced by merging the name page of CYM’s passbook with the balance pages of D’s passbook Account No 122-1-040700.  CYM’s bank records showed a stagnant balance of $5,160 - $5,162 since 1 January 2011 up to 1 January 2018. The $2 increase was from bank interest.  There was no activity in this account for 7 years. 

40.According to movement records of Immigration Department, CYM was out of Hong Kong since 29 April 2013 until 18 November 2022, the last date of the records. 

41.PW13 MCKINNON confirms that D personally gave him 6340 0169 as the contact phone number on or about 31 August 2016 when he and D personally signed a tenancy agreement dated for 2 years until 2018. 

42.As aforesaid, I am of the view that D’s passbooks were kept by herself at all material times.  D’s passbook could not have merged with CYM’s passbook unless D had directed or consented to it for {CYM}’s application.  Likewise, 6340 0169 would not have been provided unless D had directed or consented to it for {CYM}’s application.  Whether D herself did, or D caused someone to, produce a copy of a false passbook for {CYM}’s application, it is still within the ambit of Charge 9.  I find D’s act of using a copy of a false instrument proved beyond reasonable doubt. 

Charge 1 against D (Making a false statement)

43.In the application dated 10 May 2017, {HHT} provided 6340 0169 as the contact phone number.  There was a copy of D’s Hong Kong identity card. There was a copy of Water Bill of D for the address, which transpired to be a property solely owned by D. 

44.PW13 MCKINNON confirms that D personally gave him 6340 0169 as the contact phone number on or about 31 August 2016 when he and D personally signed a tenancy agreement for 2016 to 2018.  He had never heard of DH-1.  DH-1 had never worked or resided there.

45.When the application was made, D had already leased the property to PW13 MCKINNON for 2016 to 2018.  It was impossible for the domestic helper to work and reside at the address.  It was a false statement in the application that the domestic helper would work and reside at the address. 

46.As aforesaid, I am of the view that D’s passbooks were kept by herself at all material times.  D’s passbook could not have been provided unless D had directed or consented to it for {HHT}’s application.  Likewise, 6340 0169 would not have been provided unless D had directed or consented to it for {HHT}’s application.  Whether D herself did, or D caused someone to, make {HHT}’s application, it is still within the ambit of Charge 1.  It was a false statement by D that the domestic helper would work and reside at the address. I find D’s act of making a false statement proved beyond reasonable doubt. 

Charge 13 against D and CYC (Making a false statement)

Charge 14 against D and CYC (Using a copy of a false instrument)

47.In the application dated 14 June 2017, there was a copy of CYC’s Hong Kong identity card.  There was a copy of Water Bill of CYC for the address, which transpired to be a property owned by D and CYC. 

48. {CYC} provided 6340 0169 as the contact phone number.  PW13 MCKINNON confirms that D personally gave him 6340 0169 as the contact phone number on or about 31 August 2016 when he and D personally signed a tenancy agreement dated for 2 years until 2018.  He had never heard of DH-1. He had never heard of DH-1.  DH-1 had never worked or resided there.

49.{CYC} also provided a copy of a false passbook produced by merging the name page of CYC’s passbook and D’s passbook Account No 122-6-050092. 

50.When the application was made, D and CYC had already leased the property to PW1 for 2017 to 2019.  It was impossible for the domestic helper to work and reside at the address.  It was a false statement in the application that the domestic helper would work and reside at the address.

51.As aforesaid, I am of the view that D’s passbooks were kept by herself at all material times.  D’s passbook could not have been provided unless D had directed or consented to it for {CYC}’s application.  Likewise, 6340 0169 would not have been provided unless D had directed or consented to it for {CYC}’s application.  Whether D herself did, or D caused someone to, produce a copy of a false passbook for {CYC}’s application, it is still within the ambit of Charge 14.  I find D’s act of using a copy of a false instrument proved beyond reasonable doubt. 

52.Similarly, 6340 0169 would not have been provided unless D had directed or consented to it for {CYC}’s application. Whether D herself did, or D caused someone to, make {CYC}’s application, it is still within the ambit of Charge 13.  It was a false statement by D that the domestic helper would work and reside at the address.  I find D’s act of making a false statement proved beyond reasonable doubt. 

CONCLUSION

53.In the aftermath of my finding, by virtue of section 74 of Criminal Procedure Ordinance, that D is under disability, the prosecution have proved D did the act charged against her on all 10 charges.  I shall make orders for D according to section 76 of Criminal Procedure Ordinance. 

MATTERS TO BE CONSIDERED BEFORE SENTENCING

54.As a hospital order is usually appropriate only for a defendant who acted violently as charged, a guardianship order or a supervision and treatment order is a more viable option.  Apart from 2 psychiatrists’ reports, I have also called for a social enquiry report from the Director of Social Welfare Department.

55.The aforesaid reports have taken into account D’s past and present mental and social condition.  Whilst she still suffers from bipolar affective disorder, she has good family support principally from her daughter who lives in the same estate and decides to spend full time looking after her in future, and her response to psychiatric treatment has been regularly satisfactory. She agrees to have her mental condition continually monitored by out-patient psychiatric treatment. 

56.Coupled with her ability for daily self-care, and even for her grandchildren at times, a guardianship order or a supervision and treatment order is deemed unnecessary for her. 

57.It is not known why D did the acts.  There is no apparent loss or damage to anyone, except the workload of investigation and prosecution arising from such lacunae in the approval process that her acts had highlighted. 

58.The only sentencing option is an absolute discharge[1]. I so order in respect of all charges.