HKSAR v. Wong Shan

DCCC 1134/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1134 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to five offences of conspiracy to defraud, and the offences illustrate his part in an agreement to contract what is described as bogus marriages for the purposes of bringing people in to Hong Kong to reside.

2.The Summary of Facts illustrates the defendant’s role in this conspiracy.  In the 1st charge, a person described as PW1 answered an online advertisement to earn money by going to China to sign documents and go to mainland China for reward.  PW1 was informed this would be an arrangement for a bogus marriage with a mainlander, and the defendant was responsible for arranging for PW1 to contract a bogus marriage with a mainlander.

3.As part of that, PW1 went to Hainan with the defendant, and the defendant brought PW1 to take photographs and to sign marriage papers.  The defendant gave $25,000 as a reward to PW1.

4.In May of 2015, PW1 went again to Hainan alone, and met the defendant there.  This was to complete the marriage registration. The defendant gave $5,000 to PW1.

5.Eventually the mainlander entered Hong Kong on the strength of a Tanqin exit endorsement.

6.The 2nd charge involved a witness called PW2, who again was offered to contract a bogus marriage in the mainland for reward. PW2 went to Hainan with the defendant to solemnise a marriage with a mainlander.  The defendant briefed PW2 on the marriage procedures and to assist the mainlander with the application for the exit endorsement and one-way permit. The defendant also gave PW2 $5,000, and the defendant instructed PW2 to accompany the mainlander on their arrival in Hong Kong to avoid suspicion.

7.In Charge 3, PW3 again was offered money to contract a bogus marriage with a mainlander.  The defendant was the middleman of this bogus marriage and responsible for bringing PW3 to Hainan to contract a bogus marriage with a mainlander.  In December of that year, which is 2014, PW3 went to Hainan with the defendant.  This was to process the registration of the marriage.  PW3 received $40,000 from the defendant as a reward for this, and eventually the mainlander entered Hong Kong on the strength of the Tanqin exit endorsement.

8.In the 4th charge, PW4 was to contract a bogus marriage with a mainlander for a reward of $30,000.  PW4 met the defendant and the defendant took PW4 to Hainan to solemnise the marriage.  PW4 received 20,000 Renminbi from the defendant as the reward.  PW4 was also instructed later on to return to Hainan to assist with the exit endorsement application. With the arrangement of the defendant, PW4 went to Hainan and returned together with the mainlander, who entered on the strength of the Tanqin exit endorsement.

9.The 5th and final charge involved a person described as PW5.  The defendant’s arrangement was to contract a bogus marriage with a mainlander for $20,000 as a reward.  In this case, the defendant brought PW5 to a law firm to sign documents.  The defendant accompanied PW5 to Hainan to solemnise a marriage.  The defendant gave PW5 copies of his identity card and a home visit permit to assist the application.  That is the application for exit endorsement, and again the mainlander entered Hong Kong on the strength of the Tanqin exit endorsement obtained by way of the bogus marriage.

10.As far as the defendant’s antecedents are concerned, he has some previous convictions; a total of nine times in court. Most of those relate simply to gambling offences, although in 2004 he was sentenced to prison for employing a person not lawfully employable.

11.Otherwise, the defendant is aged 58.  He has been a cook in the past.  In mitigation I found out details of his family background.  They show that the defendant came to Hong Kong in 1988 and was employed as a chef.  He was unemployed at the time of these offences.  He is married, and has three children, who are all working now.  He committed these offences out of financial reasons.  There is also a letter written by his daughter.  He is described as the sole breadwinner of the family in the past, and was a responsible father and a good son to his mother.

12.As far as mitigation is concerned, the defendant has admitted all these offences and has shown remorse by his plea of guilty.  I shall reflect that in the eventual sentence, but also have regard to the overall totality of sentence.

13.The offences themselves relate to between 2014 and 2016, so they involve ongoing offences over quite a period of time.  The offences themselves are serious, as the bogus marriages entitle people to come to Hong Kong illegally. 

14.There are a number of authorities on the sentencing of cases involving bogus marriages in relation to both conspiracy to defraud and false misrepresentation charges.  The proper starting point in these cases is considered to be 18 months’ imprisonment for conviction after trial.

15.In the present case, I do accept that the facts do not show that the defendant was the mastermind of the offences.  However, it is clear that he played a pivotal role in arranging the bogus marriages, so his culpability certainly warrants a starting point of 18 months’ imprisonment for each charge.

16.Therefore, I will adopt a starting point of 18 months’ imprisonment for each charge; that is, from 1 to 5.  After taking into account the defendant’s plea of guilty, the sentence on each charge as a result is reduced to one of 12 months’ imprisonment.

17.There appear to be no other mitigating factors which would warrant a further reduction.

18.Therefore, I sentence the defendant to 12 months’ imprisonment on each charge for Charges 1 to 5.

19.The present case involved a total of five bogus marriages which took place within an operative period of some 24 months, and that must be reflected in the overall totality.  The sentences can be served consecutively, but to do so in total would obviously lead to an excessive sentence.

20.What I shall do to achieve the correct overall totality is order that 3 months’ imprisonment out of each of the 2nd, 3rd and 4th charges run consecutively to the 1st charge and to each other.  The sentence for the 5th charge will run concurrently to those sentences.

21.This leads to an overall totality of 21 months’ imprisonment.