Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Hksar v Dumayag, Analyn Pedro

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date24 April 2018
Neutral Citation[2018] HKCFI 825
Judgement NumberHCMA668/2016
Citation[2018] 2 HKLRD 914
Year2018
Subject MatterMagistracy Appeal
CourtCourt of First Instance (Hong Kong)
HCMA668/2016 HKSAR v. DUMAYAG, ANALYN PEDRO

HCMA 668/2016

[2018] HKCFI 825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 668 OF 2016

(ON APPEAL FROM STCC NO 1719 OF 2016)

________________________

BETWEEN
HKSAR Respondent
and
DUMAYAG, ANALYN PEDRO Appellant

________________________

Before: Deputy High Court Judge Anthony Kwok in Court

Date of Hearing: 19 September 2017

Date of Judgment: 24 April 2018

___________________

J U D G M E N T

___________________

1. The appellant was convicted after trial of one count of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115 before Ms. Ivy Chui, Magistrate sitting in Shatin Magistrates’ Courts and was sentenced to 5 months and 2 weeks’ imprisonment. She appealed against her conviction only.

2. The appellant is a foreign domestic helper from the Philippines. The particulars of the charge aver that she had been in contravention of a condition of stay which limited her stay in Hong Kong “until 24 March 2011 or two weeks after termination of contract, whichever is earlier” but she remained in Hong Kong till 22 October 2015.

Application for stay of proceedings

3. Before the commencement of the trial, the appellant applied for a permanent stay of the proceedings on the ground that the prosecution of the appellant was an abuse of process for the appellant was a victim of human trafficking and exploitation. It was submitted that she has been a victim of human trafficking by reason of the employer’s failure to submit the signed and certified employment contract to the Immigration Department to obtain a new employment visa. She had been deceived about the progress of the application of the visa with her passport retained and a total of 38 months of salary was also withheld from her thereby abusing her position of vulnerability.

4. The appellant further complained that there has been no such effective screening or investigation by the prosecution into the likelihood of the defendant being a victim of trafficking, despite the constitutional duty and requirements of prosecution policy under paragraph 18 of the Prosecution Code. Therefore, the criminal proceedings should be stayed because the bringing of the prosecution against the appellant “offends the court’s sense of justice and propriety so that the entire prosecution was tainted as an abuse of process”.

Evidence in stay application

5. I shall adopt the summary of evidence as prepared by the magistrate in paragraphs 8 – 23 of her Statement of Findings: -

“ Defence evidence in the Stay Application

8. The defendant elected to give evidence in support of her application for stay. She called no defence witnesses.

9. The defendant was 36 years of age. She had been educated to high school level. She arrived in Hong Kong in March 2003 to work as a domestic helper for Ms Chow Siu Kam Mary (‘Chow’). She worked at the address stated in the contract of employment. However, Chow did not reside there. Instead, her daughter Ms Leung Mei Ling (‘Leung’), her husband and their two children lived there. The defendant performed domestic duties and looked after Leung’s children, one of whom was mentally disabled.

10. The defendant said that 2 months’ wages remained unpaid by Leung in 2008. When Chow passed away in 2009, the defendant asked Leung whether her employment visa would be terminated. Leung assured her that Chow’s death was not an issue as far as her employment was concerned and that she could continue to work for Leung and her family.

11. In 2010 Leung was owing to the defendant a total of 6 months’ wages. However, she always told the defendant that the outstanding wages would be settled soon without giving her a deadline.

12. The defendant said her 4th 2-year contract expired in 2011. On 20 March 2011, she signed a new domestic helper contract with Leung which was verified by the Philippines Consulate on the same date[1]. When the contract was returned to the defendant, the defendant gave the contract to Leung along with her passport for Leung to approach the Immigration Department to obtain a new employment visa. One month passed and Leung still did not give her back anything. Leung told her that her employment visa was still being processed.

13. In May 2011 Leung told the defendant that some additional documents were needed to apply for her employment visa. The defendant gave evidence that she was very worried because if she was intercepted by the police in the street discovering that she did not have any valid employment visa, she would be in trouble and be sentenced to jail.

14. In 2014 the defendant repeatedly asked Leung about the process of her employment visa application. She also asked for thereturn of her passport as she wanted to go back to the Philippines to see her family. At that time, the defendant did not know whether her employment visa has been granted by the Immigration Department as Leung did not give her anything. Leung replied that it was still in process and she said she would put things right because she had connections to obtain the necessary visa.

15. On 20 June 2015 while cleaning Leung’s handbag at home, the defendant found that her passport and the contract with Leung were being kept there. She took a look at her passport and discovered that she has already overstayed in Hong Kong. As she was afraid of being accused of stealing, she put her passport back to the handbag. Subsequently the defendant went to see her sister and told her about the expiry of her employment visa. Her sister, who resided in Hong Kong, took the defendant to the Philippines Consulate for assistance. The Philippines Consulate issued a temporary travel document to the defendant[2]. Her sister helped the defendant to pay the costs of the document first as she did not have any money with her. As the defendant did not have her passport which had been retained by Leung, she decided not to approach the Immigration Department for assistance.

16. On 2 August 2015 the defendant and her sister together with a friend confronted Leung and asked her why she had caused the defendant to overstay her visa. Leung asked the defendant whether she wanted to continue to work for her and the defendant said ‘yes’. Leung then asked for 2 weeks to process her employment visa application. Leung told them not to worry as she had connections to obtain the necessary visa.

17. After a lapse of 2 weeks, Leung asked for two more weeks to rectify the situation. She said not to worry and that she would take care of the matter. After a few months the defendant suspected Leung was lying as she kept asking for more time to put things right.

18. Upon advice of her friend, the defendant decided to surrender to the Immigration Department on 22 October 2015 together with a letter dated 22 October 2015 written by Helpers for Domestic Helpers (‘HDH’) [3]. On that day, the defendant presented her Hong Kong identity card to the Immigration Department. She was then asked to return to their office on 28 October 2015 for an interview.

19. At an interview with the Immigration officer on 28 October 2015, the defendant asked an interviewing officer if she should leave her job as she was still staying with her employer. The Immigration officer said to her ‘it is up to you’. During the interview,she was asked to fill in the ‘Action card for the Debriefing of Human Trafficking Victims’ (‘Action card’) [4].

20. On 2 December 2015 the defendant ceased working for Leung. The defendant said Leung was owing to her a total of roughly 38 months’ wages[5], in a sum of about $150,000 covering the period from 2009 to December 2015. She was now taking proceedings in the Labour Tribunal against Leung to recover arrears of wages.

21. At all material times Leung was in possession of the signed employment contract, approved by the Philippine Consulate, and in possession of her passport. Her passport has never been returned to her.

22. The defendant gave evidence that her last visit to the Philippines was in May 2009. During her employment with Leung, she was given a rest day every Sunday. The defendant said Leung’s mentally disabled son was very attached to her and would often pin for her when she was not around.

23. There was no cross-examination of the defendant by the Prosecution.

Prosecution evidence in the Stay Application

24. The Prosecution called two witnesses to testify in the stay application: PW1, Ms Chan Hiu Wa and PW2, Ms Chu Yam Chit Yam. Both of them were the Immigration Assistants attached to General Investigation Team and Special Investigation Team respectively.

PW1’s evidence

25. PW1 said on 28 October 2015 she was assigned by the case officer to help the defendant, with the assistance of Tagalog interpreter, to complete Part A of the Action Card only. The aim of filling in the Action Card was to investigate whether the defendant was exploited.

26. Upon completion of Part A, PW1 handed the document for the case officer to follow the matters. PW1 was not responsible for Part B of the Action Card.

PW2’s evidence

27. PW2 gave evidence that on 28 October 2015 she was responsible to finish Part B of the Action Card with the defendant. The purpose of the interview was to investigate whether the defendant was the victim of human trafficking. The interview was conducted in the presence of a Tagalog interpreter. PW2 was not the one who set the questions. She simply followed the pre-set questions to conduct the interview with the defendant. Upon completion of the Action Card, PW2 submitted it to her superior for further action.”

The magistrate’s ruling on stay application

6. The magistrate refused to stay the proceedings. In so doing, she referred herself to the case of HKSAR v Lee Ming Tee & Another (2001) 4...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT