HKSAR v. Mendoza Zenaida Tabilog and Another

DCCC1167/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1167 OF 2011

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Reasons for Sentence

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1.The 1st defendant pleaded guilty to two charges: Charges 1 and 3. D2 was convicted after trial of Charges 2, 3 and 4.

2.The first charge is an offence of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap.115, against the 1st defendant.

3.The second charge is against the 2nd defendant of aiding and abetting the breach of condition of stay of D1 of the same offence.

4.The third charge, against both accused, is a conspiracy to defraud, contrary to Common Law, and concerns the submissions of false documents to the Immigration Department dishonestly by the defendants in submitting 26 false applications for employment of domestic helpers and their visas and supporting documents such as proof of address and proof of income.

5.The fourth charge, against both accused, but to which only the 4th defendant has been found guilty of, as the fourth charge is being left on the file against D1, is a conspiracy to make false statements or representations to Immigration officers, again in relation to false domestic helper contracts.

6.The circumstances of the offence are that between March 2011 to August 2011, D1 and D2 conspired together and did submit false documents and made false representations to the Immigration officers of the Immigration Department in order to facilitate the processing of false domestic helper contracts with bogus employers.  The proposed domestic helpers never intended to work as domestic helpers.

7.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 who employed D1 and was thus aiding and abetting D1’s breach of condition of stay in Hong Kong.

8.All in all, there were a total of 26 false applications made to the Immigration Department.  13 of the applications were granted employment visas, as unbeknown to the Immigration officers, the contracts or supporting documents were bogus.  The remaining half of the applications, the Immigration officers refused to issue their visas, as they had detected the falsity of such applications.

9.The defendants’ involvement in the false applications started in or about March 2011, when the 1st defendant met an older Chinese man known to her only by the name of “Mr Sze”. Mr Sze had approached D1 when she was working at D2’s employment agency.

10.Mr Sze supplied the names of the bogus employers and all false supporting documents, whilst D1 and D2 would find the intended domestic helpers.  Some domestic helpers would just randomly walk into the agency and seek bogus contracts. 

11.There was an attraction for the defendants in this scheme, as there was more lucrative money to be made compared to the domestic helper contract application fees.

12.Agency fees for genuine applications would generally be a small fraction of the price paid by the domestic helper for the bogus applications.  The domestic helpers paid about $25,000 per application and the money would be shared amongst the defendants and Mr Sze.

13.In this scheme, D1 received about $20,000 whilst D2 received about $30,000 from these bogus applications.

14.There are no tariffs laid down for these offences. 

15.Similar offences were considered in R v Durup, CACC 194/1996. In that case, there were 27 charges relating to seven domestic helpers. The court held then that the appropriate sentence after trial was one of 3 years’ imprisonment.

16.In R v Loh Wah Theam, Saied J accepted a sentence of 4 years’ imprisonment was not inappropriate, and when giving judgment for the Court of Appeal, he considered what the Court of Appeal said in Ching Wai Fan Carina [1995] 2 HKC 217:

“after considering Durup, MacDougall VP said (at page 220):

‘In R v Mak Chun Hin (CrimApp 458/1992, unreported), which was a case relating to a conspiracy in the course of which forged contracts of employment were created to support the grant of employment visas to prospective employees, and which involved millions of dollars, another division of this court expressed the view that a sentence in the region of 1-year imprisonment would have been appropriate. While we consider that that is somewhat a benevolent view and that the level of sentence for this type of offence has hitherto been unduly low, we are not prepared to say that in such a sentencing climate, the judge was wrong to have passed the sentences which he did. However, those who commit this type of offence in the future can expect to be dealt with more severely than this respondent and the defendants in Durup, Mak and other cases.’”

17.Immigration regulations and Immigration officers’ duties are an important safeguard in the proper and legal employment of persons in Hong Kong.

18.The Immigration Department deal with many thousands of applications nowadays for the employment of domestic helpers, whether they be new applicants or applicants extending their visas.

19.What the defendants were doing was defrauding a government department in dishonestly representing that these domestic helpers would work here as helpers, when in fact, there was no intention that they would do so.  They would have taken employment in other fields.

20.The main purpose of the restrictions on their visas is to prevent them from working in the community illegally.  The defendants were paid by those persons.  It is difficult in most cases for the authorities to uncover the deception.

21.This is clearly a very serious offence and precedent shows that an element of deterrence in sentences must be passed.

22.Both defendants are of clear record.  They are Filipinas.

23.D1 is 52 years old.  She was called as a witness for the prosecution by giving evidence against her co-accused, D2.  Her evidence has assisted the prosecution in securing a conviction against D2.

24.I have taken into consideration all the mitigation put forward by her counsel, Ms Ody Lai, and the letters written by the defendant and her sister.

25.D1 came to Hong Kong initially to work as a domestic helper in 1996.  Up until 2006, she was a hardworking, caring member of her family.  She assisted in the support of her five siblings and family in the Philippines, eventually, I am told, giving opportunities for her sisters to come to work in Hong Kong as domestic helpers and some of whom have now gone to Canada to work as caregivers.

26.However, in 2006, her husband suffered a stroke and money was needed for his hospitalisation and medication.  Since D1 was in desperate need of more money than she was earning as a domestic helper, she changed her employment to become an employment agent. 

27.She continued to work as an employment agent all along, when in 2011, she met this man, Mr Sze, and became involved in these bogus applications and these current offences.  Mr Sze had supplied all the information on the employers and false documents and D1 filled in all the forms and did the paperwork.

28.D2 is 30 years of age.  I convicted her after trial of the three offences.

29.She lives in Hong Kong as a permanent resident, having received her status as her parents were permanent residents.  She was otherwise brought up in the Philippines until she came to Hong Kong when she was 16 years old.  She has lived here since.  Her parents moved back to the Philippines after her father had a stroke, and I understand he passed away in 2010.

30.She engaged in various employments until she set up her employment agency, BFF, in 2009, but since the set-up of BFF, she was struggling in making ends meet in the business.  She was, however, provided for by her long-term boyfriend.  He provided her with the necessary finance and assistance in maintaining her living and costs related to BFF.

31.She became involved with D1 in March 2011 when she employed D1 at her agency so as to boost her business. 

32.She is, I am informed by Mr Collins her counsel, suffering from high blood pressure and is on medication.

33.The defendants knowingly and dishonestly made 25 bogus applications to the Immigration Department, to which they received rewards.  They submitted these applications over a period of about four months.  They were made under the umbrella of D2’s employment agency.  This was a business operation and scheme by the defendants with Mr Sze to defraud the Hong Kong government.

34.I accept the defendant’s business not only carried out bogus but also genuine contracts of employment of domestic helpers.  Their attraction was, of course, in receiving much larger payments for these bogus contracts.

35.Even though D1 was the one doing all the paperwork, I do consider that the defendants share a similar degree of culpability.

36.I have had regard to the mitigation and the cases submitted to me by counsel for D1 and D2.

37.Taking into account all the circumstances of the offences, and in very brief summary the 25 bogus applications within the four months by the defendants and a Mr Sze as employment agents, receiving rewards of $20,000 and $30,000 respectively and perpetrating a fraud on the HKSAR government, I consider a starting point of 3½ years’ imprisonment to be appropriate for Charges 3 and 4.

38.For Charges 1 and 2, concerning D1’s breach of condition of stay and D2’s aiding and abetting her breach, I consider a starting point of 3 months to be appropriate.

39.For D1, on Charge 1, the starting point of 3 months’ imprisonment shall be reduced to 2 months in taking into account your plea of guilty.

40.For D2, on Charge 2, you are sentenced to 3 months’ imprisonment.

41.On Charge 3, as I mentioned, a starting point of 3½ years’ imprisonment.

42.D1 has given assistance to the prosecution by giving truthful and reliable evidence against D2.

43.Taking that into consideration, together with her guilty plea and remorse, I give a discount of 50 per cent reduction in her sentence of 3½ years.

44.For Charge 3, therefore, D1 is sentenced to 1 year and 9 months’ imprisonment.

45.For D2, on Charge 3 you are sentenced to 3½ years and the same sentence is to be passed on you for Charge 4:  3½ years.

46.In sentencing the defendants, I must take into account the principle of totality.

47.The third and fourth charges arise out of the same set of facts.  However, the first and second offences were distinct and separate offences.

48.I, therefore, order the sentences to run partly concurrent and partly consecutive.

49.I order 1 month of Charge 1 and 2 months of Charge 2 to run consecutive to Charges 3 and 4, and the remaining charges are to run concurrent to each other.

50.D1, that means that you will be sentenced to 1 year 10 months’ imprisonment, and D2, you shall be sentenced to 3 years 8 months’ imprisonment.