The Queen v. Hsu Sai-man and Another

CAAR000012/1986

BETWEEN

Coram: Sir Alan Huggins, V.-P., Kempster, J. A. & Macdougall, J.

Date of Hearing: 15th August 1986

Date of Judgment: 15th August 1986

___________

JUDGMENT

___________

Sir Alan Huggins, V.-P.:

1. This is an application by the Attorney General for a review of two sentences imposed upon a charge of conspiracy, the particulars of the conspiracy being that it was one "to make or cause to be made false representations to Immigration Officers acting in the course of their duty under Part III of the Immigration Ordinance".

2. The 1st Respondent instituted a scheme which would enable Filipina girls who were in employment in Hong Kong to remain in Hong Kong after their contracts of employment had expired. The learned judge in a most careful and conscientiously prepared statement of his Reasons for Sentence expressed it in these words: it was a scheme

"to set up and run a kind of employment agency to enable Filipinas, who are here in Hong Kong as domestic workers, to stay longer than they might otherwise have been allowed to stay under the scheme which is operated by and through the Immigration Ordinance."

and subsequently he said:

"It worked in the following way: the 1st defendant would find persons who were willing to act as employers who would furnish him with personal particulars such as details of their identity cards, bank passbooks and would fill in forms of contract for domestic helpers but in fact such persons would not employ these domestic helpers. Armed with these false documents, the individual worker would then apply for permission to extend her stay in Hong Kong."

3. This scheme was in operation for some fourteen months, and in the course of that time twenty-seven Filipina girls were assisted. For this work the 1st Respondent charged a sum of $2,000 each. The amount was not in fact paid in full because the illegal transaction was discovered before payment of all the instalments which had been agreed were in fact made.

4. The 2nd Respondent, herself a Filipina, had been employed lawfully in Hong Kong as a domestic helper. Her contract came to an end and she then entered into a further contract for employment by the 1st Respondent as a domestic helper, but, whether this was the intention from the beginning or whether it was an intention subsequently formed, she did not work as a domestic helper but as a secretary. As such secretary she became involved in this illegal scheme about half way through the transaction. She received no advantage for her work other than the wages which she was being paid under the contract of employment.

5. The 1st Respondent was sentenced to imprisonment for fifteen months suspended for three years. The 2nd Respondent was fined a sum of $2,000. It is argued that these sentences were wrong in principle and manifestly inadequate.

6. We wish to make it clear that we do not consider that the suspension of the sentence of imprisonment was wrong in principle or that this fine was wrong in principle. It is not for this court to lay down any addition to the excepted offences which have been created by statute in relation to the suspension of the terms of imprisonment or the imprisonment of young persons. This must remain a matter of discretion.

7. However, a sentence may nevertheless be manifestly inadequate even though it is not wrong in principle. In relation to the 2nd Respondent we are not persuaded that the sentence was in all the circumstances manifestly inadequate. She was undoubtedly led into this offence in part by the 1st Respondent and we think that there were strong extenuating circumstances. The learned judge considered the cases of each of these Respondents with the very greatest care and we are not satisfied that it is right to interfere in the case of the 2nd Respondent.

8. As to the suspension of the term of imprisonment of the let Respondent the learned judge did not have the benefit of seeing the judgment of another division of this court in the case of Reg. v Durup Crim. App. 1986 No. 194. We do not read that judgment as purporting to lay down that a sentence of imprisonment for the particular offence can never be suspended: it was the view of the court in that case that the sentence there ought not to be suspended. Had the learned judge in the present case seen this judgment we have very grave doubts whether he would have suspended the sentence which he was imposing and, not without some reluctance, we have come to the conclusion that this was a case where there should not have been a suspension. There were indeed mitigating circumstances. These were set out by the learned judge in his reasons very carefully. He pointed out that the Respondents had been very co-operative, that the 1st Respondent had suffered an exceptional loss in the death of his father shortly before his appearance in court and that he had had to sell his house - a house in which his father was apparently living with him - in order to pay the costs of these proceedings, but we are not satisfied that those were sufficient grounds for suspending a sentence in respect of an offence which involved such deliberate dishonesty over a substantial period and enabled persons to overstay their lawful residence in Hong Kong. In our view the sentence ought not to have been suspended. However, as is our practice in cases where we interfere on review, we shall not merely lift the suspension: we shall substitute for the sentence which was imposed by the trial judge a sentence of twelve months' imprisonment.

15th August 1986

Representation:

Egan for Crown.

D.Keane, Q.C. & I. Polson for Respondents.