HKSAR v. Cheng Siu Man

DCCC 1095/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1095 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. Essentially, the defendant entered into four bogus marriages with four mainland men to facilitate their entry into Hong Kong. These bogus marriages induced the Director of the Immigration Department and his staff to permit the four men to enter into Hong Kong on the back of the documentation for these marriages. The defendant was paid on each occasion that she entered into each sham marriage.

2.For the 1st charge, the defendant told the Immigration Department under caution that in 2003, her friend Kei Kei arranged for her to enter into a bogus marriage with a man she had never met and paid her $5,000 as a reward.  As for Charge 2, 3 and 4, defendant told the Immigration Department under caution that in 2007, on three separate occasions, her friend Ah Fung arranged for her to enter into three sham marriages for which she was paid a total of $20,000.  The defendant never saw these four men again after signing certain documents with them, but all four men were allowed into Hong Kong by the Immigration Department at various stages on the back of these sham marriages.

3.The defendant was arrested in 2015 and after her arrest fully co-operated with the Immigration Department.  Under caution, she made full admissions of all four charges.  Her best mitigation is her plea of guilty. 

4.The defendant is not a woman with a clear record.  She has 10 previous convictions obtained over nine court appearances starting from 1997 when she was 20 years old.  Those convictions include six for possession of dangerous drugs, two for trafficking dangerous drugs and two for offences of dishonesty.  The most serious conviction was for trafficking dangerous drugs, and it was her last conviction when in November 2008 she was sentenced to 6 years and 8 months by the High Court for trafficking drugs. I have been told today she was released from that sentence in June 2012.  From her record, I can see that she has no more convictions after that offence.

5.Defendant is 40 years old and the youngest of three siblings.  She has two elder brothers.  She comes from a poor family, and her parents were divorced when she was very young.  Her mother raised the children on her own.  Because of the financial situation, she did not finish school because she was required to go into the workforce to help support the family financially.  As a result, she is not an educated woman.  Sadly, when she was young, she got involved with drugs and became a drug addict.  Her record is proof of that.

6.I have been told in mitigation that when these offences were committed between 2003 and 2007, the defendant was a drug addict.  She was tempted by these four bogus marriage transactions because it was easy money and she needed it for drugs.  She was told by her so-called friends that these offences were not traceable which is very naïve to believe that.

7.I have also been told since the defendant’s release in June 2012, she is no longer a drug addict.  In fact, she has worked hard to turn over a new leaf, obtained full-time employment and a steady income.  She now earns $13,000 a month as a dishwasher and supports her mother.  She now lives with her mother.  I have a letter from the defendant and her mother.  I have taken the contents into account.  Her mother asks for leniency.  The defendant also asks for leniency but at the same time accepts she must be responsible for her own actions.  I accept her plea and her letter as evidence of remorse, and the fact she has stayed out of trouble since her release from her last sentence evidence her determination to stay away from drugs and crime.  Mr Lai has said all he can on behalf of the defendant in mitigation, and I take it all into account.

8.The Court of Appeal on many occasions has said that a starting point of 18 months is appropriate for this type of scam.  On another occasion, a starting point of 21 months has been upheld.  Taking into account the authority of HKSAR v Chan Hong Tak & Others CACC 475 of 2011 as well as HKSAR v Chen Wuchang HCMA 251 of 2007 and HKSAR v Chui Man Yi HCMA 342 of 2007, those appeals considered 18 months’ starting point appropriate. 

9.These offences are serious because they are prevalent, wholly dishonest and, lastly, difficult for the authorities to detect until often too late.  I in coming to a sentence take into account the defendant’s plea, mitigation and the authorities I have just referred to.  I see no reason to depart from what is considered an appropriate starting point. I will take for each charge a starting point of 18 months’ imprisonment.  The defendant has pleaded guilty and is therefore entitled to a discount of 6 months from every charge.  Therefore, for each charge, the defendant is sentenced to 12 months’ imprisonment. 

10.I take into account the totality principle as well as the fact there are four bogus-marriage offences in this case.  I therefore order that 2 months of Charge 2 be served consecutively to Charge 1.  I also order that 1 month of Charges 3 and 4 be served consecutively to Charge 1, the balance consecutively.  Therefore, there is a total sentence of 16 months’ imprisonment.  Do you understand?

DEFENDANT: Understand.