HKSAR v. Lam Leonor Chan

HCMA125/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 125 OF 2009

(ON APPEAL FROM TWS 6259-6268 OF 2008)

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  18 August 2009

Date of Judgment:  18 August 2009

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J U D G M E N T

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1.This is an appeal against conviction on 10 summonses which alleged the failure to pay full wages to a domestic helper, contrary to sections 23 and 63 of the Employment Ordinance, Cap. 57.

2.The 10 summonses span the period from December of 2005 through to July of 2007.  It was in April of 2005 that PW1, an Indonesian domestic helper, took up her duties as an amah with the Appellant at her home.  For the first five months she was only paid a $100 a month, but the balance of her money was used to pay agency fees that had been incurred in setting up the 2-year contract.  There was no summons in respect of this period.  From the sixth month of employment what was alleged, was that the domestic helper was actually paid only $1,800 per month, and that was the case for each month until the 12th month of the employment.  Thereafter there was a payment of $2,000 cash per month for the second year.  The contract in fact provided for the minimum wage, which at that time was in the sum of $3,270 per month. 

3.The evidence of PW1 was to the effect that each month she was asked to write out a receipt for the full amount of wages, and she was given a cheque drawn by the Appellant, which she then took to a bank and cashed, bringing the cash home and delivering up the balance in excess of either the $1,800 or $2,000 per month figure.  In effect, her explanation as to why she allowed this to occur was because of the dominant position of the employer.

4.However, at the end of the contract, having spoken to friends and the like about the situation, she took some steps which eventually led to this prosecution.  The defence that was run at the trial was that the domestic helper was paid her full wages and that the receipt and the cheque demonstrated that to be the case. 

5.The issue is thus one of credibility.  Of course the magistrate had the advantage of seeing and hearing the witnesses, but I am in a position, with a full transcript before me, to look at the points that bore on the issue of credibility.  In effect there are four points said to damage PW1 such that she should not have been believed or that there was at least a reasonable doubt as to whether she was telling the truth.  Those four points have been aired in front of me today by counsel for the Appellant. 

6.The first involved whether or not she had been demonstrated to have lied.  Reliance was made on a document produced only in front of me now on this appeal.  I have looked at it de bene esse.  It is a document from the employment agency which described her education on the form, typed out in English, as being secondary.  She had given evidence at the hearing that she had primary education.  Even though the whole document does bear PW1’s signature at the end of it, it is quite clear from the evidence at trial that she was not an English speaker or an English writer.  So whoever typed in “secondary” school would not have been PW1.  It is a small point that is available to be made.  It does not begin to carry the force of demonstrating her to be a deliberately untruthful woman.

7.The second lie was said to arise in this way, that at the end of her contract she went to the employment agency and told them she wanted further employment in Hong Kong.  She agreed that this was not true.  However, she explained that the reason she said that she wanted further employment was to get her passport back from the employment agency.  The reason she gave for resorting to such a ruse was that she feared she would not get it back otherwise.  Accordingly, there is little or no damage done to her credibility by reference to this suggestion of lies. 

8.The second point concerned a comparison of some handwriting on the receipts that were written out each month.  PW1 said that she was taught how to write them by the Appellant.  She said that she did not write out the first one and that the Appellant had done that.  Counsel for the Appellant says: “Look at the handwriting.  It’s similar enough to the others.  She is wrong about that.”  Counsel for the Respondent says there are dissimilarities.  Even if the similarity is such that I were driven to say she did write out the first one and therefore was wrong about the appellant doing so, it would not lead me on to a finding that she had been deliberately dishonest, firstly because there was no point, no obvious advantage to her in telling a deliberate lie about it, and secondly, because the evidence of the Appellant was that she had, in fact, taught her on that first occasion how to write out the receipt.  So whether it was done on that piece of paper or a different piece of paper did not really matter.

9.The third point taken concerned her knowledge of her employer paying the agency fee for the first five months of the contract.  It was said that she contradicted herself.  The reference is between pages 213 and 228 of the bundle, which is transcript of the proceedings below.  It seems to me clear that at page 213 she was speaking of her then knowledge at the time of the trial as to who paid the agency fee.  At page 228 she was dealing with what her knowledge was at the time concerning the matter.  Accordingly, there was nothing in the point.

10.The fourth point that was taken was that in her original claim to the Labour Tribunal the figures claimed did not show the increase from the alleged payment to her of only $1,800 a month up to $2,000 a month after the first anniversary of the contract.  It was said that this showed a deliberate attempt to boost a claim in a false way.  The claim was later amended.  In my view there is nothing in this point.  Many a claim starts with the figures not being correctly set out, and they were amended later.  The idea that this revealed a woman being dishonest in the quantum of her claim is one I reject.

11.So the points to be made against PW1’s credibility come to little or nothing.  There exists, however, a point that supports her and supports her in a way that is both powerful and significant.  It comes from her use of a tape recorder at the end of the contract.  There is a transcript of the recording which runs for some 8 minutes.  Objection was taken to the admissibility of the tape recording on the basis that its quality was such that it was difficult to be sure about a 100 per cent accurate translation. 

12.A man was called who was an employee of the Labour Tribunal, whose job it had been to produce a transcript from the tape.  He had spent many hours listening to it and, of course, his various drafts changed; they became more accurate as time went on.  It was the difference between the transcripts which supported much of the objection to the admissibility.  But those were clearly matters that went to weight.  I bear in mind that it was not an easy job to transcribe.  I bear in mind that the transcription will not be 100 per cent accurate. 

13.But what the transcript does reveal is the general nature of the conversation that took place when PW1 asked her employer why it was she had to sign the receipt for the larger sums.  What followed there was the employer talking at length in a way that avoided an outright admission but sought to explain why it was that the maid was not getting the full minimum wage, the full contract wage.  That is as plain from a reading of the transcript as a whole.  That is something which did not depend upon the accuracy of individual sentences or words.  There is talk in it of her not being able to speak Cantonese, not being able to cook properly, all justifying the underpayment of wages.  There is no explanation I can think of in the context of this case whereby that tape does not provide the most cogent support for PW1.

14.Consequently, when it comes to looking at the issue of credibility between the two women I am not surprised that the magistrate found, as I find today, that the truth lay in the mouth of PW1, and it followed that the convictions on the summonses were and are good ones.

15.The appeal against the convictions is therefore dismissed.  As regards sentence, I am going to adjourn that until this afternoon in order to give the Appellant an opportunity to deal with the question of compensation and restitution.  I do that at the request of her counsel.

(Submissions re bail, compensation and restitution arrangements and Appellant’s financial situation and sentence)

16.The magistrate imposed a total of 9 months’ imprisonment.  He achieved that by imposing sentences of 1½ months on the summonses and overlapping some of them.  It is common ground that 9 months was a heavy sentence.  That comes about really because of the history of prosecutions concerning this offence.  Statistics have been produced for me which the magistrate did not have.  I have details of cases going back to 1997.  It is worthy of note that the legislature increased the maximum for this offence in March of 2006 to raise the imprisonment to a maximum of 3 years.  The statistics reveal that in respect of underpaying or not paying foreign domestic helpers no immediate custodial sentence has been imposed. 

17.In 1997, in a case involving $24,250 of underpaid wages, a sentence of 1 month’s imprisonment, suspended for 2 years, was passed.  In the other cases fines were imposed.  However, after the increase that I have already referred to in the maximum sentence, community service enters the picture.  There are to be found two cases in 2008 where that penalty was invoked. 

18.Looking at statistics for the offence generally, not limiting it to those cases concerning domestic helpers, the position is that, since 1997, 19 cases involved imprisonment, but in all but six of those cases the imprisonment was suspended, and the longest period of imprisonment was some 2 months.  Those cases often concerned commercial enterprises where a company folded without paying its workers wages.

19.So it can be seen that this sentence of 9 months’ imprisonment stands out prominently from that history.  I can quite understand why it was the magistrate took such a view that led him to that sentence, for this was a mean offence.  The Appellant used her position as employer to have the work from her maid while deliberately and consistently underpaying her.  We are all guilty of some meanness in our lives from time to time, but mostly one would like to think they are limited occasions.  This meanness extended for a period of 19 months, and it was directed at someone who lived under the same roof. 

20.In my view that conduct merits an immediate custodial sentence.  In some cases it may be that immediate remorse, coupled with a timely plea of guilty, may result in the alternative of community service.  But my view is that those in the Appellant’s position cannot have their cake and eat it.  If you fight and lose the trial you cannot expect to be shown the mercy of community service and save yourself from imprisonment.

21.It is thus that the question is: how long?  I do not have to say that the magistrate was wrong.  This is a re-hearing, and this is a matter about which different judges and magistrates will inevitably take different views.  Whilst I share with the magistrate a repugnance at the conduct displayed by the Appellant in this regard, I do think 9 months is too long.

22.In finding a suitable total for the sentence, I bear in mind that the total backlog of wages on the 10 summonses came to $13,500.  Those were 10 summonses taken as examples of the conduct because there were 19 months in all where underpayment took place.  That gave rise to a total underpayment of $24,260.  In court today the defence have passed to the Labour Department officers who are here a banker’s draft in that sum.  There had been a willingness to pay before but the payment had not been made for what I understand to be reasons that it may have been thought to have prejudiced the merits of the appeal against conviction.  Be that as it may, the victim of the crimes has been put in a position she should have been in if she had been properly treated.  I do give the Appellant credit for that.  That was not the position that faced the magistrate. 

23.For cases like this - and I cannot believe this is just an isolated case - the sentences which have attracted fines or community service have, in my view, to this point been inadequate.  The deliberate raising of the maximum sentence of imprisonment to 3 years by the legislature in 2006 must have been undertaken for good reason, and the legislative intent is only too clear.  No one would take other than a serious view of the cynical and long-term exploitation of foreign domestic workers. 

24.I am going to impose a sentence of 3 months’ imprisonment in total.  That will be the sentence on each of the 10 summonses, to run concurrently.  In saying that, I cannot and do not seek to impose any tariff and make the point that in the future such a starting point for sentence after trial, in a case like this, may be thought to need increase.  In coming to that sentence of 3 months I have given credit for the payment of all the arrears, and the sentence would have been longer without it.  

Ms Grace Chan, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Phil Chau, instructed by Alvan Liu & Partners, for the Appellant