HKSAR v. Mendoza Zenaida Tabilog and Another

DCCC 1167/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1167 OF 2011

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HKSAR

Against

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REASONS FOR VERDICT FOR D2

1.This trial is only concerned with the determination of whether the prosecution have proved beyond reasonable doubt that the 2^nd defendant (D2) is guilty of the offences, she having pleaded not guilty to all charges. D1 has admitted the commission of the offences.

2.Overview

The offences allege that the 1^st and 2^nd defendants (D1 and D2) between the months of March 2011 to August 2011 conspired together and did submit false documents and made false representations to immigration officers of the Immigration Department in order to facilitate the processing of false domestic helper contracts with bogus employers. At the material time D1 was in breach of her condition of stay in Hong Kong as she was only allowed employment as a domestic helper when in fact she worked as an employment agent. D2 was the sole proprietor of the employment agency whose address was used on the applications and who employed D1, thus aiding and abetting her breach of condition of stay.

3.The facts

Between September 2010 to July 2011 the Immigration Department received 26 separate sets of applications for employment of 26 domestic helpers from abroad made by the employer and the respective visa applications by the domestic helper. The supporting documents from the employers such as proof of income and address were false documents. The prospective employers named on the forms had no knowledge of the respective applications. It was not intended that the domestic helpers would work for those employers.

4.All 26 bogus employers or “sponsors” as was the jargon, submitted the same correspondence address on the application form namely Room 710C, Ho King Commercial Centre, 216 Fa Yuen Street, Mong Kok, Kowloon (the Mong Kok address/office).

5.From September 2010 to August 2011, 13 of the 26 applicants were granted visas to work in Hong Kong under their employment contracts unbeknown to the immigrations officers that they were bogus contracts or false documents.  Those applicants were listed in Appendix A.  The other half were refused visas, as on those applications the immigration officers noticed the falsity of the documents.  Those applicants were listed in Appendix B. 

6.Immigration officers raided the Mong Kok address on 22 August 2011.  At that time D1 was in the office.  D2 turned up at the premises sometime after the initial entry by the immigration officers.  Both the defendants were arrested and cautioned.  Upon search of the Mong Kok office photocopies of the documents in respect of the 26 bogus applications were found.  D1 produced the key to one of the filing cabinets in the office where some of the documents were found. 

7.The defendants are Filipina women.  D1 was at all material times in Hong Kong under a domestic helper visa.  D1’s status as a domestic helper was granted to her since December 2005 and continued until January 2013.  D2 is a permanent resident.  She acquired her residency through her parents as they are Hong Kong permanent residents. 

8.Despite D1’s condition of stay imposed upon her by the Immigration Department that she only work in Hong Kong as a domestic helper she breached her condition of stay as she and D2 worked as employment agents principally for overseas Filipina domestic helpers.

9.From April 2011 the Mong Kok address was the registered address of D2’s employment agency.  D2 was the sole proprietor of an employment agency known as BFF Employment Services and Trading Company (BFF).  Its employment agency licence was granted to D2.  BFF was the only employment agency registered at the Mong Kok address from April 2011.  The Mong Kok address was used as the correspondence address for the26 bogus applications to the Immigration Department.

10.Background of EZM and BFF employment agencies

From about September 2006 D1 was the registered partner of the employment agency E.Z.M. Overseas Employment and Trade Centre (EZM). EZM was granted a licence annually to operate as an employment agency from 29 September 2006 until 10 September 2010. Its registered offices were all along at the Mong Kok address. D1 worked principally as an employment agent of EZM since September 2006.

11.After the expiry of EZM’s licence in September 2010. D1 continued to rent the office premises at Mong Kok.

12.D2’s employment agency BFF’s licence was first issued on 24 August 2009.  BFF’s registered address was at premises in Kimberly Road in Tsim Sha Tsui (the Tsim Sha Tsui address).  The Commissioner of Labour issued the registered change of address to the Mong Kok office for BFF on 26 April 2011.  BFF’s licence was valid at all material times and valid until 23 August 2012.

13.When BFF changed its address to Mong Kok, EZM’s licence had expired some seven months earlier in September 2010. 

14.Of the 26 application forms and employment contracts, D1 filled in all of the particulars except for the signature of the domestic helper and the employer.  Thereafter she asked one Ms Helen Koon to take the application forms and supporting documents to be submitted to the Immigration Department. 

15.After D2’s arrest and when being interviewed by the immigration officers under caution on the day of her arrest and the day following, D2 had made voluntarily statements in two record of interviews which contained admissions to some of the offences.

16.All of the above facts were not in dispute.

17.The present trial and charges

As a result of the above facts and admissions made by the defendants under caution the defendants were charged jointly and severally with the four offences on the charge sheet.

18.D1’s charges

D1 was charged with 3 offences. D1 pleaded guilty to two charges. The remaining charge was left on the court file and D1 was granted immunity under that charge (charge 4).

19.D1 admitted that by working as an employment agent she breached her condition of stay (charge 1). She admitted that she conspired with D2 to submit false documents in support of the 26 applications made to the Immigration Department (charge 3).

20.D1 gave evidence for the prosecution as to her and D2’s involvement in the commission of the offences.  Principally that there was an agreement between herself and D2 to submit false documents and make false representations to immigration officers to facilitate the bogus employment contracts for the domestic helpers.  D1 is waiting to be sentenced after the trial of D2 on the charges she had admitted.

21.D2’s charges

D2 was charged with three offences. D2 has pleaded not guilty to charges 2, 3 and 4.

22.In short, charge 2 alleges that D2 aided and abetted D1 to breach her condition of stay.  D2 is jointly charged with D1 in charges 3 and 4 of conspiracy to defraud the immigration officers by dishonestly submitting false documents (charge 3) and conspiracy to knowingly make false representations to immigrations officers (charge 4). 

23.D2’s case

D2 denied she was a party to any agreement with D1 in submitting false documents or making false representations to the Immigration Department. It was D2’s case that although her agency BFF had its offices in Mong Kok and was the only registered employment agency there at the material times, it was her belief that EZM agency was still operating there as it had done so for the past years.

24.D2’s belief was that the Mong Kok premises were the registered address of both EZM and BFF and not exclusively that of BFF.

25.Consequentially all the 26 application forms submitted by D1 did not involve her and she did not conspire with D1 to submit the bogus applications. 

26.It was D2’s case that D1 worked for D1’s own employment agency EZM whilst D2 carried out her business under BFF at the Mong Kok office exclusively.

27.D2 denies she employed D1 to work for BFF or that she had any knowledge that D1 was a domestic helper at any time.  It was D2’s case that she believed that D1 was either a permanent resident or had permission to work as an employment agent as when D2 met D1 in about 2002 D1 was working as an employment agent then and continued to do so all along.

28.D2 only came to know that D1 was a domestic helper when PW3 the immigration assistant told her on the 22 August 2011 at the Mong Kok office when the immigration officers conducted their raid. 

29.Although the records of interviews were voluntarily made and were an accurate record of the answers given by D2, D2 said that the answers were not what she had intended or meant to say. She was not feeling well at the time and for that reason said things she did not mean to say. 

30.Issues

Under charge 2 the issues are: -

(a) whether D2 employed D1 and

(b) if D2 did employ D1, did D2 know at the time of her employment of D1 that D1 was a domestic helper and she was not permitted to carry out any other work other than as a domestic helper?

31.The issues in respect to charges 3 and 4 are whether: -

(a) At the material times did D2 know that D1 was submitting false documents in support of the applications and making false representations to the immigration officers,

(b) If D2 did know,

(i) was there an agreement between D1 and D2 that they would submit false documents to the immigration officers for the employment of domestic helpers (charge 3) and

(ii) was there an agreement between D1 and D2 to make false representations to the immigrations officers to facilitate domestic helpers contracts knowing that the applications contained bogus employers (Charge 4).

32.D2’s Record of Interviews (exhibit P61 and P62)

(a) was D2 feeling unwell during the interviews,

(b) if D2 was feeling unwell did she as a result give the answers she did as she was not concentrating,

(c) were the answers in the two record of interviews what D2 had meant to say and

(d) if the answers were what D2 meant to say were they truthful answers?

33.The witnesses

The prosecution called three witnesses. PW1 was an immigration officer who explained the procedures of and supporting documents required for an application for employment of a domestic helper and a visa. He was the officer who had noticed the falsity in some of the documents such as the incorrect tax year. PW2 was the co-accused D1. PW3 was an immigration assistant who was tendered for cross-examination. PW3 was present when D1 and D2 were arrested for the offences on 22 August 2010 at the Mong Kok office.

34.The defendant elected to give evidence she called no defence witnesses.

35.The evidence

A large portion of the prosecution case was admitted by D2. There were four sets of admitted facts marked as PA1-PA4. Two voluntary and accurate records of interview (exhibit P61 and P62) made by D2 were admitted into evidence. The majority of the salient facts have been mentioned above.

36.The prosecution case

The principal witness for the prosecution was D1. The prosecution also relied on admissions in the records of interview. The immigration officer PW1’s evidence was not challenged. Nothing turned on PW3’s evidence.

37.D1’s (PW2’s) evidence

D1 is 52 years of age. At the time she was giving evidence she was remanded in Tai Lam Women’s Detention Centre awaiting sentence for the two charges she had pleaded guilty to.

38.D1 met D2 in about 2001 in Hong Kong through the introduction of mutual friends. They maintained contact by phone but not all the time. D1 remembered that D2 had contacted her before D2 applied for BFF’s employment agency licence in 2009. After the commencement of BFF’s operation, D2 would often make telephone calls to D1 to ask D1 advice on how to handle certain employment applications.

39.D1’s testimony was that before EZM’s licence had expired in September 2010 she was in communication with D2 regularly.  D1 and D2 had agreed that when EZM’s licence expired D1 would transfer all her clients and networks to D2 and D2 would then transfer BFF’s licence to the Mong Kok address immediately and D2 would employ D1 to work for BFF. 

40.However despite D2’s agreement that D2 would move BFF to Mong Kok in or about late September 2010 D2 did not move BFF to the Mong Kok offices until about late February or early March 2011.  D1 said she did not know why it took D2 so long to transfer BFF’s business to Mong Kok as EZM’s licence expired on 28 September 2010.

41.However D1 said in between the expiry of EZM’s licence and BFF moving to Mong Kok she and D2 had discussions about the transfer of the rental deposit to D2 which D1 had already paid on the Mong Kok premises.  However as D2 did not give D1 the rental deposit, D1 continued to occupy the offices at Mong Kok.  After BFF moved to Mong Kok, D2 however paid for the rent and expenses but the utility bills and the lease remained in D1’s name. 

42.D1 was adamant that after EZM’s licence expired in September 2010 D1 did not make any fresh or new domestic helper employment applications to the Immigration Department.  D1 said that as EZM did not have a licence it ceased its business operations.  D1 clarified however that even after the expiry of EZM’s licence D1 did and was required to follow up on applications that had already been filed with the Immigration Department prior to expiry of EZM’s licence. 

43.D1’s evidence was that all new applications were only submitted by D1 to the Immigration Department after BFF moved to the Mong Kok premises.  Those applications were those as listed in Appendix A and B except the one listed as A4 in Appendix A. 

44.D1 recalled that it was sometime in late February or early March 2011 that D2 moved BFF to the Mong Kok offices.  D2 had a key to the Mong Kok offices though D2 was not there regularly. 

45.Once BFF had moved to the Mong Kok address D2 hired D1 to work for her at BFF as an employment agent.  D1 regarded D2 as her boss.  D1’s evidence was that D2 knew all along that D1 was a domestic helper here in Hong Kong. 

46.Whilst D1 was working for D2 she made both false and genuine applications for domestic helpers.  She and D2 knew of the false information in regard to the bogus 25 applications (except A4 which was made in September 2010).  She and D2 knowingly commenced making these bogus applications in March 2011.  D1 did not know at the time A4’s application was made that it was false. 

47.D1 said that she and D2 knowingly became involved and agreed to submit bogus applications to the Immigration Department after she, D1 met a man known only to her as Mr. Sze in March 2011. D1 came to know Mr Sze as he just happened to walk into the BFF agency at Mong Kok.  She did not know Mr Sze before she worked for D2 at BFF. 

48.Thereafter Mr Sze supplied D1 with all the details of the bogus employers and provided her with the false documents (proof of income and address documents).  D1 and D2 used the jargon of “sponsors” to refer to the bogus employers.  The proposed domestic helpers would either be introduced by herself or D2, some however would just walk into the agency in person and arrangements would be made for them. 

49.Of the domestic helper applicants who made bogus applications D1 herself introduced two of her relatives (in Appendix A, A3 and Appendix B, B8) and D2 introduced seven. 

50.D1 pointed out that the seven applicants introduced by D2 were those as named in Appendix B listed under B1, 2, 3, 6, 7, 9 and 10.  D2 had specifically told D1 that she had asked the girls named in B1 and B2 to look for D1 so that D1 could find them sponsors.

51.D1 herself filled in all of the particulars on the application forms and the contract except for the signatures of the domestic helper and the sponsor.  The sponsor’s signature would be on the blank form given to her by Mr Sze and Mr Sze would provide all the other particulars of the employers.  After the forms were ready to be submitted she asked one Ms Helen Koon who was a part-time employee of D2’s to take the application forms and supporting documents to be submitted to the Immigration Department.  D2 was not involved in the paper work or filling out of the forms. 

52.The applicant domestic helpers paid a fee for their bogus applications.  This was about $25,000 per application.  D1 said the applicants paid in cash.  The money was paid once an application was submitted to the Immigration Department.  Payment was not dependent on whether an application was successful.  The money was paid to D1, D2 or Helen Koon.  Thereafter the money was shared.

53.The fee from each applicant was distributed by giving about $15-18,000 to Mr Sze, $2,000 to D1 and D2 or BFF would get the remainder of about $3,000-$5,000 of which some would be used to defray expenses.  D1 would usually hand the money to Mr Sze but when D1 was in the Philippines Helen Koon handed the money to Mr Sze.

54.D1 estimated that she earned about $20,000 and D2 more than $30,000 from these false applications. 

55.D1 said that when BFF moved to the Mong Kok address no furniture or office equipment was taken there by D2 as D1 agree to leave all her equipment there as it was in good condition. 

56.D2’s evidence

D2 elected to give evidence. She is aged 30. She has a clear record. Her oral evidence was at odds and in direct conflict from the admissions and some of the statements contained in the two records of interviews made to the immigration officer in exhibits P61 and P62.

57.D2 did not challenge the voluntariness or importantly the accuracy of the statements made in the record of interview. It was D2’s evidence that her mind was not clear because of her medical condition. D2’s evidence was that she was not concentrating and came out with answers that she did not mean.

58.During the interview she had very high blood pressure.  She felt that she was about to faint, D2 however never complained about her condition to the immigration officers despite the opportunity to do so.

59.D2 meticulously went through each answer that was predominantly an admission.  She did not challenge the accuracy but explained that despite what was recorded she had meant something entirely different from what was stated. 

60.It was D2’s evidence that she alone worked for BFF, there was no other employee.  She had met D1 in about December 2002.  D2 was introduced to D1 by her friend, at that time D2 knew that D1 worked in an agency but D2 did not know the name of the agency. 

61.D2 only renewed contact with D1 in about December 2010 when she needed to ask D1 advice about some applications for domestic helpers.  In December 2010 D2 went to D1’s office in Mong Kok and collected some forms.  At that time D1 was running an employment agency there.  Displayed on the main door were the words EZM Overseas.  Inside the office D1 displayed EZM’s licence and business registration.  There were many people there and EZM was in operation.  Notably after the expiry of EZM’s licence. 

62.After D2’s encounter with D1 in December 2010, D2 maintained contact with D1 quite regularly.  Nothing however was related to business.

63.In or about the first week of March 2011 out of the blue D2 was told by her landlord to vacate the offices of BFF at Tsim Sha Tsui as he needed the office space urgently. 

64.D2 then called D1 to ask her how to cancel her employment agency licence as she no longer had office premises.  D1 suggested to D2 that D2 could share EZM’s office in Mong Kok.  D2 asked her about the payment of rent and D1 said that it would be very low.  D1 said D2 could pay $20 a day as D2 would only hang up her licence at the premises.  D2 accepted D1’s arrangement and both she and D1 agreed that they would work separately from each other operating their own respective agencies, i.e. EZM and BFF. 

65.D2 notified the Labour Department of the necessary change of address from the Tsim Sha Tsui to the Mong Kok address in or about March 2011.  The Commissioner of Labour issued the registration of change of particulars on the licence on 21 April 2011 (exhibit P70). 

66.D2 moved BFF to the Mong Kok address in or about the end of April 2011 or the first week of May 2011.  D2 displayed BFF’s licence in the Mong Kok office.  At that time as D2 did not have a frame D1 took out EZM’s licence from the frame and then gave the frame to D2 to place BFF’s licence.  At that time D2 did not examine EZM’s licence, she believed it was still valid.  She believed EZM was still in operation and D1 was working under EZM’s licence. 

67.D2 did not employ D1. D2 did not know that D1 was a domestic helper as since she had known D1 she knew that D1 worked as an employment agent in an employment agency.  D2 had not hired Helen Koon to work for her but she had introduced Helen to D1, and D1 had hired Helen Koon. 

68.D2 did not know anything about the 26 false applications that D1 made to the Immigration Department when they were made.  She never introduced any intended domestic helpers to D1 to look for sponsors or bogus employers.  D2 did not know that D1 was providing false documents or that the employers were bogus. 

69.D2 came to know only in July 2011 that D1 was arranging bogus applications.  Her knowledge came about because D1 had told her.  She was furious with D1 and told D1 she was taking her licence and office away from the Mong Kok office. 

70.It was D2’s case that she came to know about the bogus applications because she had assisted D1 with one of D1’s applicants enquiries when D1 was away in the Philippines in July 2011. D1 had called D2 in Hong Kong from the Philippines to ask D2 to make enquiries about two applications related to one named Niocina and Solasco named and listed in Appendix B as B2 and B5 as D1 was unable to contact Helen Koon.  D2 tried to contact Helen Koon herself but was also unable to do so.  D2 therefore agreed to assist D1 as Helen was unreachable. 

71.D1 told D2 to collect some documents from the Mong Kok office however as D2 rarely went to the Mong Kok office D2 did not have the key to the Mong Kok office.  D1 therefore arranged for D2 to collect a key for the Mong Kok office from D1’s sister who was in Hong Kong.  D2 told her where to find the documents in the office. 

72.D2 then went and collected the documents with the key provided by D1’s sister.  After that D2 went to the Immigration Department to make enquiries about the visas of those two applicants.  D2 was told that the visas were refused.  However the immigration officer refused to tell her the reasons for refusal as they were confidential.

73.After D1 returned from the Philippines, D2 had a telephone conversation with D1.  Out of curiosity D2 asked D1 about the refused visas.  D1 told D2 that one of the applicants Niocina was only sponsored.  D2 knew and understood that sponsored meant the employer just signed the contract but that the domestic helper did not actually work with the employer.  D1 and D2 then argued.  D2 said that before moving to the Mong Kok address she told D1 that D1’s agency must not do anything illegal.  D2 expressed her strong disapproval of the bogus applications and indicated to D1 that she would withdraw her licence from the Mong Kok office.  Then D1 retorted by saying why should D2 be angry when it was not D2’s business but her (D1’s) business and that D1 would be responsible.  Then D1 cut the phone line.

74.D2 called D1 again.  D2 told D1 that she was going to the office to collect the licence and BR however D1 swore at her and cut the telephone line.  D2 called D1 repeatedly thereafter but D1 refused to answer her call.

75.Although D2 wanted her licence back, D2 did not go to the office again until the day of the raid on 22 August.  At about 4.30 pm that day D2 received a call from an unknown Filipina asking her to go the Mong Kok office.  That female told her that D1 needed her help.  D2 thought it was an opportune time to retrieve her licence from D1 so she went up to the Mong Kok offices.   

76.When D2 arrived at the office at about 5.00 pm she was surprised as there were many people there.  D2 entered and asked what the problem was.  They took away D2’s identity card and asked D2 if she was the licensee of the office.  D2 said it was her licence. 

77.At the office PW3 told D2 that D1 was a domestic helper however D2 replied that she had no idea that D1 was a domestic helper.  PW3 then angrily shouted at D2 saying that D2 hired D1 to work in the office and that D2 knew D1 was a domestic helper.  D2 again reiterated she did not know D1 was and denied that she had hired D1. 

78.D2 was then arrested and made voluntarily records of interviews under caution on the day of her arrest and the day following.

79.D2 said that she had not received any payment or commissions from D1 in respect to any of the bogus applications.  She had received no income at all from BFF’s business since moving to the Mong Kok office. 

80.As to why BFF’s licence was issued and renewed as of 24 August 2011 and valid to 23 August 2012 D2’s evidence was that the licence renewal procedure for BFF was initiated in June 2011 before D2 found out about D1’s bogus application and that Helen Koon had assisted her by paying the fee.  It was D2’s evidence that the renewal of BFF’s licence was already well underway before D1’s disclosure concerning the bogus contract of Niocina and therefore a new licence was issued. 

81.PW3’s evidence

PW3 stated in her evidence that she did not have any memory of speaking to D2 however what she did know was that she would never shout at any suspect or arrested person.

82.Analysis of evidence

From the record of interviews it can be seen that D2 read the questions and answers herself and had it read over to her. She agreed it was an accurate record of the answers she had provided. During the interview exhibited at P62 she had a 40-minute rest and meal break at 2010 hours and later in the interview she was given a break for about 15 minutes. In P61 D2 was asked if she wanted a rest and her answer was no. The tone of the interviews clearly provides for D2 to state her condition or requests and at no time did D2 mention she was feeling unwell or that she was feeling faint. I do not believe she was feeling unwell or faint at the time. She was given ample time to rest.

83.There are clear and unequivocal admissions to charge 2 made by D2. Much of those admissions are in direct support of D1’s evidence. They are in the 1^st record of interview Exhibit P61 at answers A8, A9, A10, A11, A12 and A13 and in the 2^nd record of interview Exhibit P62 at answers A8, A9. I found that those answers were truthful answers given by D2.

84.Those answers show that D2 admitted that she had hired D1 as one of the persons in charge at her employment agency BFF at the Mong Kok address.  D2 knew that D1 was a domestic helper in Hong Kong and that D1 was not permitted to work other than as a domestic helper and was thus working illegally for D2.  D2 had asked D1 for D1’s assistance as D2 was losing money operating BFF.  D1 then told D2 to move her agency to the Mong Kok address and D1 told D2 that she could introduce a lot of domestic helpers to D2 as she had a lot of connections in Hong Kong.  D2 therefore moved BFF to the Mong Kok address so D1 could assist her to earn more money although she knew it was illegal to employ a domestic helper however they did not sign an employment contract so others would not know that D2 employed D1.  D2 seldom went to the office but D1 went daily to entertain the customers to process employment applications and to pay all the bills of the agency.  D2 would pay D1 HK$20 a day as requested by D1 as her daily travelling allowance.

85.D2’s viva voce evidence of giving answers in the records of interview she did not mean was farcical and fanciful unworthy of any belief.  The questions were simple and the answers were direct and unequivocal.  By and large D2 tried without success to extract herself from the admissions she had made. 

86.D2’s viva voce evidence was in sharp contrast to the admissions she made in the records of interviews. A few examples are that in her oral evidence D2 said that she only learnt D1 was a domestic helper from PW3 on the day of her arrest on 22 August 2010.  It is beyond belief that if that were the truth that D2 did not express that in the interview or answer the questions put to her in that context but expressed the answers in the way she did (see paras 83 and 84). 

87.In the first record of interview exhibit P61 at Q20 D2 was asked if there were other staff working at BFF.  D2 answered that there was a part-time called Helen Poon who is her friend.  She would pay HK$200 each time she would instruct Helen to take the documents to go to the Immigration Department.  In her oral evidence D2 denied employing Helen.  Again it makes no sense at all that D2 would state the complete opposite in the record of interview if the truth were that she did not employ Helen. 

88.As can be seen in D2’s answers in the record of interview the answers are detailed and shows clearly that D2 knew of D1’s status at the time she hired D1 and for that reason D2 deliberately did not have a written contract of employment so as to hide the fact. 

89.The tenor of the 2^nd record of interview exhibit P62 shows that D2 knew that D1 made bogus contracts with an old Chinese man.  Although it is seen in that record of interview that D2 tries to distance herself from D1 and the old man and that she was not party to the bogus applications it is clear in answer 17 that D2 knew there was something different about the applications made with the old man and D2 received payment from the old man answer 30. 

90.D2 said in answer 17 that the commission fees that she received from the old man were higher then she would get from other applications.  She could only share several hundred dollars from other applications whilst with the old man she would be paid $2,000 and the company will be paid $3,000. 

91.Moreover D2 was asked at Question 30 of the 2^nd record of interview how much total payment did she receive in commission from the old man.  Her answer was that that she received HK$12,000 in all for four times.  She first received $6,000 on May 2011, then $2,000 each month in June, July and August 2011 respectively.  These answers are again in stark contrast to D2’s oral evidence that she did not receive any commission or payment for the bogus contracts and any income at all from her own business at BFF after moving to the Mong Kok office.

92.D2’s oral evidence was that she paid D1 $20 per day for displaying her licence in the Mong Kok office.  It was D1’s evidence that the $20 was intended as a travelling allowance but that eventually D2 never paid her for that.  D1 vigorously denied in cross-examination that there was an agreement between them that D2 was to pay $20 a day to display her licence. 

93.Nowhere in the two records of interview does D2 ever mention the $20 a day licence display charge.  She does however mention a $20 a day transportation fee.  It is no coincidence that the $20 is mentioned as the transportation fee because I found, that is the truth, moreover it supports D1’s evidence.  D2’s evidence of the $20 being a licence display fee is a fabrication. 

94.Mr Collins submitted that there is clear evidence that D1 was involved in these bogus applications long before March 2011 when BFF had moved to the Mong Kok address.  That is evidence of D1 not telling the truth that the bogus applications started with meeting Mr Sze in March 2011 and with the agreement of D2 and that D2 employed D1. 

95.Mr Collins refers to the one of the twenty-six applications made in September 2010 Appendix A (A4) six months before BFF or D2 was at the Mong Kok office.  It was not challenged that twenty-five of the twenty-six applications were made from March 2011. 

96.Mr Collins submitted that as a bogus application was made in September 2010 D2 was obviously not involved as D2 had not moved to the Mong Kok premises and it was before the alleged agreement in September between D1 and D2 to move BFF to the Mong Kok address. As D1 was dealing with bogus employers before D2 moved to Mong Kok it supports D2’s case that D2 was not party to any agreement either then or from March 2011. 

97.As to the applicant in Appendix A4, D1’s evidence was that she processed the September 2010 application but she did not know at that time that the application made was a bogus one.  It was D1’s evidence, which, I accept that the applicant’s sister brought the papers to her as the sister worked in Hong Kong, and she was asked to process the papers for them, which she believed were genuine. 

98.D1’s evidence that she only met Mr Sze in March 2011 and from then on the bogus applications were made are supported from the flurry of applications made from March 2011 and thereafter. All but one of the 26 applications listed in Appendix A and Appendix B were made between March to July 2011.  I believe D1’s evidence that she only knowingly made the bogus applications in agreement with D2 only when she commenced working at BFF and was employed by D2 from March 2011. 

99.I found D2’s account of not having a key to the Mong Kok premises incredulous.  On D2’s account she was paying $20 a day to D1 to display BFF’s licence or about $600 a month.  D2 was operating BFF from the Mong Kok premises as an employment agency separately from D1.  It is simply inherently improbable that D2 who was operating a business separate from D1 would not have access to premises.  How then could D2 conduct her business if D1 was not there?  

100.Further incredibility is of D2’s account that she had no income from her business at BFF since she moved to the Mong Kok address.  Why then would she pay $600 a month or $7,200 a year and a $2,000 renewal of licence fee until August 2012.  It is beyond belief that with no income from her business she would continue to pay those costs. 

101.More implausible is that although D2 wanted her licence back from the Mong Kok office she made no attempt to retrieve it by going up to the office at all after her dispute with D1. There was no evidence that she was prevented from going to the Mong Kok office.  It was unbelievable that only after an unknown Filipina called her and asked her to go to the office on 22 August because D1 needed help did she decide to go to the office to answer D1’s call for help and at the same time think only then, to retrieve her licence some three weeks after telling D1 she was furious with her and wanted the return of her licence.

102.Apart from the very absurd and far-fetched meanings D2 gave to the express unambiguous answers in the record of interviews, I rejected D2’s oral evidence and case, which attempted to show she was not involved in the offences.  Despite giving myself the requisite warnings of her clear record as directed in the cases of R v Berrada and Vye I found D2 was not a credible witness. 

103.I have warned myself that D1 was a tainted witness with a vested interest and a purpose to serve. She had a motive for tailoring her evidence against D2 to get a reduced sentence.  She was granted immunity from prosecution under charge 4.  I have approached her evidence with caution. D1 was not challenged expressly in cross-examination as to any inconsistent statements made by her in any of the previous statements.  Despite strenuous and detailed cross-examination D1 was not shaken.  Taking into consideration all the above factors, D1 was, I found an honest and reliable witness. 

104.Conclusion

The evidence against D2 was overwhelming. D2 had employed D1 to boost her employment agency business. She knew at the time that D1 was a domestic helper and it was illegal to do so. D2 conspired with D1 to dishonestly submit false documents and make false representations to the Immigration Department on the pretence that applicants would work as domestic helpers when there was never an intention of them working as one. In facilitating these bogus applications D2 received some sums of over HK$30,000.

105.I was satisfied on all the evidence that the prosecution had proved beyond all reasonable doubt that D2 was guilty of the charges 2, 3 and 4. D2 is convicted of those charges accordingly.

Mr. David Tolliday-Wright, Counsel on fiat, for Prosecution

Mr. James Collins instructed by Messrs. Yaddy Yeung & Co. (DLA) for the 2^nd defendant.