HKSAR v. Tsang Kuen Yee, Gobby

DCCC 208/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 208 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to four charges of conspiracy to defraud.

2.The particulars of the offence are that during the month of January and February 2014 on four separate occasions the defendant conspired with other people to defraud the Registrar of marriages and officers of the Immigration Department by dishonestly falsely representing to the Registrar of Marriages that she would marry a named man and thereby inducing the officers of the Immigration Department of to grant that man, a Mainland resident, a Permit to enter Hong Kong for reunion with the defendant as his prospective spouse.  The defendant herself is a Hong Kong resident and is married to another Hong Kong Resident.  They married in July 2013.  In essence, she filed between 1 January and 17 February 2014 four Notices of Intended Marriage with four different men with the Immigration Department.  Those marriages did not go on to take place. 

3.This was not a case of a defendant entering a bogus marriage but an attempt to induce the Immigration Department to grant Permits to these four men to enter Hong Kong on the basis that there would be a future marriage.

4.The defendant herself was arrested on 31 July 2015.  She made a full admission under caution.  She explained to the Immigration officer that she had answered an advertisement in an internet newspaper.  It was an advertisement for employment.  Apparently it said that the prospective employee could borrow money in advance.  She answered the advertisement and was asked if she would enter into bogus marriages and if those marriages did take place she would receive between $30,000 to $50,000. She was willing to enter into bogus marriages because she was financially desperate.  The first stage would be to sign those Notices I have just referred to.  She did not know nor ever meet the four men that she according to the Notices intended to marry, nonetheless she knew the nature of the conspiracy and agreed to participate.  She did borrow several thousand dollars in advance from a co-conspirator. 

5.Mr Boyton has stressed that the defendant was already married and would not have gone through with the marriages and in fact none of the four men were ever granted the Permit based on those Notices to enter Hong Kong. 

6.The defendant is 35 years old, as I have said married but has no children.  She is not a woman with clear record but her two theft convictions were in 1998, a long time ago.  She does have two recent convictions but she was sentenced after these offences were committed.  They involve goods with false trademarks.  She was placed on Probation for 12 months in May 2016.  Mr Boyton has said all he can say on her behalf.  The defendant’s plea is her best mitigation.  He has explained why the defendant agreed to commit these offences. 

7.She was married in the summer of 2014 but in order to move into a marital home this couple borrowed money from creditors, in total about $50,000.  However, when her mother who was her employer found out her mother terminated her employment as well as that of her husband who was also working at her mother’s company.  So the defendant became unemployed and in debt at the same time.  She was unable to repay those debts and not long after debt collectors started to harass her and it was under these circumstances that the defendant answered that advertisement for employment.  The remuneration was too good to be true which led to her agreeing to commit these offences.

8.Mr Boyton has asked me to distinguish between actually entering bogus marriages and co-conspirators coming to Hong Kong on the back of an intent to marry.  There are no guidelines for this offence, however, entering a bogus marriage and offences related to this scam have attracted in the past an 18 month starting point. 

9.I refer myself in particular to HKSAR v Chen Wu Chang HCMA251/2007; HKSAR v Chui Man Yi, also a Magistracy Appeal, HCMA342/2007.  In those authorities an 18 month starting point was considered.  In HKSAR v Liu Qianqing HCMA 103/2007 a starting point of 21 months was upheld. 

10.I have also taken into account the authority referred to me by Mr Boyton, HKSAR v Chan Hung Ho HCMC 523/2012 as where an 18 month starting point was considered appropriate as did the Court of Appeal in the prosecution’s authority, HKSAR v Chan Hong Tak & Others CACC475/2011.

11.These offences have been described as prevalent, wholly dishonest and hard for the authorities to detect.  To conspire to enter and arrange these bogus marriages is as serious as participating in those marriages.

12.In considering an appropriate starting point I have taken into account mitigation put forward, the reasons for agreeing to commit these offences, the plea and the fact that the defendant has previous convictions but they were a long time ago.  I also do agree that she did not go so far as to enter into bogus marriages. 

13.Having taken all those factors I find relevant into account, I will take a starting point of 15 months’ imprisonment for each offence.  The defendant pleaded guilty, so she is entitled to a discount of one-third.  After that discount is applied, for each of the four charges she is sentenced to 10 months’ imprisonment. 

14.I have considered the totality principle.  Mr Boyton has tried his best to convince me that I could consider all sentences to be served concurrently, however, that would be unduly lenient.  The court must reflect the number of offences committed whilst taking into account the totality principle.  Therefore I order that 2 months of charges 2, 3 and 4 be served consecutively to charge 1 and the balance concurrently.

15.Therefore there is a total sentence here of 16 months’ imprisonment.