HKSAR v. Chen Jingwei and Another

DCCC559/2019 & DCCC846/2019

(Heard together)

[2020] HKDC 146

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 559 OF 2019

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 846 OF 2019

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Before: His Honour Judge W.K. Kwok

Date of Ruling: 11 March 2020

Date of Reasons for Decision: 16 April 2020

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REASONS FOR DECISION

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1.This was the prosecution’s application to consolidate these two cases which I shall refer to simply as DCCC559 and DCCC846.

2.There are two defendants in DCCC559.  They are Mr. Chen Jingwei (D1) and Madam Shi Yunping (D2).  The Charge Sheet contains 17 charges.  D1 is named in each of these charges either solely (Charges 1 to 3, 6 to 8, and 11 to 17) or jointly with D2 (Charges 4, 5, 9 and 10).  In DCCC846, there is only one defendant.  He is D1.  The Charge Sheet contains two charges.  It is the prosecution’s contention that all these 19 charges against D1 should be tried and heard together.

3.D1 through his counsel Mr. Shah opposed this consolidation application.  D2 through his counsel Mr. Wong maintained a neutral stance on this issue, and did not take part in the argument.

4.After hearing submissions from Mr. Chan, the Public Prosecutor, and Mr. Shah on 11 March 2020, I allowed the application by the prosecution and ordered these two cases to be consolidated and heard together with reasons for the decision to be handed down[1].

5.These are my reasons.

Facts alleged by the prosecution

6.Mr. Shah accepted that this Court could assume for the purpose of this application that the prosecution was in a position to prove by evidence the matters stated in its Summary of Facts.

7.The alleged facts are as follows.  During the times of the alleged offences, D1 together with other persons arranged marriages to be entered into between some Hong Kong residents and mainlanders, but all of them knew that these marriages would be bogus. D1’s group offered monetary rewards to some Hong Kong residents who were in need of money and recruited them to become bogus spouses.  They directed and assisted their recruits to obtain the necessary documentation in Hong Kong for completing marriage formalities in the mainland, and paid the expenses for obtaining such documents.  They then took or directed their recruits to go to the mainland where some other middlemen received the recruits and took them to meet the mainlanders who were the other parties to the bogus marriages.  The recruits and the mainlanders had never met before, but they completed the marriage formalities through the arrangement of the middlemen.  The mainland “spouses” kept the marriage certificates.  The Hong Kong “spouses” provided copies of their Hong Kong identity cards and home visit permits to their mainland “spouses”.  The middleman then took the mainland “spouses”, sometimes together with the Hong Kong “spouses”, to apply for “Tanqin” exit endorsement and one-way permit to enter and settle in Hong Kong in the future.  As coached by D1’s group, the Hong Kong “spouses” pretended to be genuine spouses of their mainland “spouses” in applications in the mainland and/or during immigration examinations in Hong Kong when the latter applied to come to Hong Kong and/or entered Hong Kong.

8.The prosecution contends that D1’s group had arranged 10 Hong Kong residents (PW1 to PW10) to enter into bogus marriages with 11 mainlanders, with PW1 entering into two bogus marriages.  Hence, D1 is charged either alone or jointly with D2 that he or they had conspired with the other members of D1’s group or of their group, the Hong Kong “spouses” and the mainland “spouses” to defraud the Director of Immigration and his officers to obtain their permissions to allow the mainland “spouses” to enter Hong Kong.  9 of these 11 counts form part of the charges in DCCC559.  They are Charges 1, 3, 4, 5, 6, 7, 8, 9 and 10.  The remaining two counts are the two charges in DCCC846.

9.In DCCC559, the prosecution also contends that, when the mainland “spouses” were pregnant women, D1’s group and the parties to these bogus marriages also conspired to obtain delivery services of hospitals by deception, with the Hong Kong “spouses” falsely claiming to be the natural fathers of the expectant babies to obtain confinement bookings for the mainland “spouses” (Charges 2, 11, 14 and 15).  After the babies were born, some of the Hong Kong “spouses” falsely claimed to be their natural fathers in birth registrations (Charges 12 and 16) and in applications for re-entry permits (Charges 13 and 17).  No similar charges are found in DCCC846 since the mainland “spouses” there were males.

The prosecution’s submissions

10.Mr. Chan informed this Court that D1 was not charged with all 19 charges in the same charge sheet because the two offences that formed the subject matter of DCCC846 were discovered only after D1 had already been charged with the 17 charges in DCCC559. 

11.Mr. Chan submitted that it would be expedient to consolidate these two cases in view of the similarities in the nature of all the charges as well as the similarities in the facts of these two cases against D1.  Mr. Chan stressed that all 19 offences arose out of D1’s participation as an arranger and a middleman of bogus marriages. 

12.Mr. Chan further argued that consolidating these two cases had the advantage that all charges would be dealt with by the same judge on one single occasion when it came to sentencing because when D1 was convicted of all or some charges in each of these two cases, the same judge would be in a position to assess the overall criminalities of all the offences found to have been committed by D1, and impose on him the appropriate overall sentence according to the principle of totality.

D1’s submissions

13.Mr. Shah stated at the outset of his submissions that he took no issue with the propriety of the joinder of the 17 charges in DCCC559.  He said that all these charges had overlapping either in the form of a specific prosecution witness, and/or in the form of a defendant, i.e. D2.  Mr. Shah pointed out that the charges with overlapping prosecution witnesses were Charges 1, 2 and 3 (involving PW1), Charges 6, 15, 16 and 17 (involving PW4), Charges 7, 11, 12 and 13 (involving PW5), and Charges 8 and 14 (involving PW6), and charges involving both D1 and D2 were Charges 4, 5, 9 and 10.  Mr. Shah also agreed that the two charges in DCCC846 were properly joined together.  He pointed out that the only issue to be determined was whether the two charges in DCCC846 should be joined together with the 17 charges in DCCC559.

14.Mr. Shah submitted that before these two cases could be consolidated, the prosecution had to point out the “nexus” or connections between the two charges in DCCC846 and the 17 charges in DCCC559. Mr. Shah argued that such nexus was missing on the following grounds.

15.First, the charge sheet of DCCC559 was dated 18 July 2019, but the charge sheet of DCCC846 was dated 12 November 2019.  There was a time gap of almost 4 months between the commencement of these two sets of proceedings.

16.Second, while the offences in the two charges in DCCC846 were similar to those offences in the 17 charges in DCCC559, there were however no factual nexus or connections between them.  There were no overlapping witnesses.  PW9 and PW10 were the civilian witnesses to be called in DCCC846 but their evidence was totally unrelated to any of the charges in DCCC559.  The immigration officers who conducted photo identifications with PW9 and PW10 were not involved in other photo identifications attended by the civilian witnesses to be called in DCCC559.  Likewise, there was no overlapping of defendant because D2 was unrelated to DCCC846.  There was also no allegation of joint enterprise or conduct in concert between the civilian prosecution witnesses in both cases.  The alleged offences in Charges 18 and 19 were factually distinct and separate.

17.Third, severance could easily be maintained at this stage without causing any unfairness to the prosecution or the defence. 

The applicable legal principles

18.The legal principles under consideration relate to joinder of multiple counts against one defendant in one charge sheet. 

19.The starting point is section 18(1) of the Criminal Procedure Ordinance (Chapter 221).  Section 18(1) stipulates that:

“Subject to the provisions of the rules made under this Ordinance, charges for more than one offence may be joined in the same indictment.”

20.The next relevant statutory provision is Rule 7 of the Indictment Rules (Chapter 221).  Rule 7 provides that:

“Subject to section 18 of the Ordinance, charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character.”

21.If the criteria laid down by Rule 7 are satisfied, it may be proper to join the charges together, but the Court still retains a discretion not to order joinder of the charges; and if the charges have already been joined, the Court may order a severance of the charges by virtue of section 23(3) of the Criminal Procedure Ordinance, which provides that:

“Where, before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”

22.Although sections 18(1) and 23(3) as well as Rule 7 all refer to “the same indictment”, and the criminal proceedings in the District Court do not start with an indictment but a “charge sheet”, the principles laid down by these statutory provisions are still applicable to joinder or severance of charges in the same charge sheet in the District Court by virtue of section 79(1) of the District Court Ordinance (Chapter 336), which stipulates that the procedures and practice for the time being in force in the Court of First Instance in relation to criminal proceedings should be followed as nearly as may be in the criminal proceedings in the District Court, and where it is necessary for the purpose of rendering such procedure and practice conveniently applicable, “indictment” and “count” should be understood to refer to “charge sheet” and “charge” respectively.

Charges for “offences of the same or similar character”

23.Mr. Chan did not argue that all the 19 charges in these two cases were “charges found on the same facts” within the meaning of Rule 7.  Clearly they were not. The facts alleged by the prosecution did not show any of the conspiracies involving PW1 to PW8 in DCCC559 owed their origin to or resulted in any of the conspiracies involving PW9 and PW10 in DCCC846.

24.On the other hand, Mr. Chan argued that the two charges in DCCC846 were similar in nature and similar in facts to the 17 charges in DCCC559.  In other words, Mr. Chan’s submission was that the charges in these two cases formed or were “a part of a series of offences of the same or a similar character” within the meaning of Rule 7, and hence they could be properly joined in the same charge sheet.  The issue in this application was whether this submission was correct.

25.In R v Kray[2], Widgery L. J. in the English Court of Appeal held that it was not necessary to have three or more offences to form a “series” of offences within the meaning of Rule 3 of Schedule 1 to the Indictment Act 1915 (equivalent to Rule 7 above in Hong Kong), and two offences would suffice.  Applying the same principle, so long as all or any of the two charges in DCCC846 and all or any of the 17 charges in DCCC559 were “offences of the same or similar character”, they would constitute a “series” of offences of the same or similar character.

26.As to what constitute offences “of a similar character”, it was held by Widgery L. J. in Kray that:

“… offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases.” (emphasis provided)

27.As to what were offences of “a similar character”, Lord Pearson (with other Lordships concurring) held in Ludlow v Metropolitan Police Commissioner[3] that the Court had to take into account not only the legal character but also the factual character of the alleged offences to decide whether the alleged offences were similar or dissimilar in nature.  Lord Pearson went on to say the following before he cited the above passage by Widgery L.J. in Kray as authority in support:

“In my opinion, however, it is important to notice that there has to be a series of offences of a similar character. For this purpose there has to be some nexus between the offences … because when regard is had to the requirement of a series of similar offences it is right to look for a nexus. Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.” (emphasis provided)

28.It is however not necessary for two or more offences to bear both legal similarity and factual similarity at the same time before they can be regarded as offences of a similar character.  In R v Marsh[4], Mustill L.J. made the following ruling:

“It was submitted before us that in light of Lord Pearson’s speech joinder could be justified under this part of rule 9 only if both legal and factual similarity could be shown. In other words, irrespective of how similar the facts might be, joinder should not be permitted unless there can also be demonstrated a legal similarity in the form of some legal ingredient of a like nature in each offence.

We are not persuaded by this argument.  It is noteworthy that Lord Pearson did not suggest that two separate hurdles had to be surmounted, but simply that both the law and the facts should be taken into account in considering whether the offences are similar or dissimilar.  Obviously, if the offences do not have any similar legal characteristics, then strong similarities of fact will have to exist to permit joinder under the rule.  But we do not understand Lord Pearson to be suggesting that the absence of legal similarity as opposed to factual similarity necessarily means that the offences cannot be described as similar in character.”

“It seems to us, therefore, that those faced with the question of joinder should approach the matter by seeking to ascertain whether or not the counts have similar or dissimilar legal characteristics, whether or not they have similar or dissimilar factual characteristics, and whether or not in all the circumstances such feature of similarity as are found enable the offences to be properly described as a series”.

29.In R v Christou[5], Lord Taylor of Gosforth considered the factors that should be taken into account in determining whether trials of different charges in the same indictment should be severed:

“Lord Lane C. J., in the quoted passage, refrained from specifying the factors a judge should consider when “taking into account all things he should”.  They will vary from case to case, but the essential criterion is the achievement of a fair resolution of the issues.  That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means the exhaustive list, of the factors which may need to be considered are: - how discrete or inter-related are the facts giving rise to the counts, the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together …” (emphasis provided)

30.In Chan Kat-lam-hoi v The Queen[6], which was a Hong Kong authority in as early as in 1965, the appellants were charged on 3 counts, with the forcible detention of H, with intent to procure a ransom, with demanding with menaces from him, and with unlawfully imprisoning his son, all on 9 September 1964.  On the same indictment, they were charged on 2 further counts, with demanding with menaces from C, and with unlawfully imprisoning him, both of 7 September 1964.  The Full Court (Scholes and Briggs, JJ.) held that the trial judge’s refusal to allow separate trials should not be interfered and gave the following reasons:

“We are of the opinion that the evidence on each set of counts was admissible in evidence on the other set of counts on account of there being a nexus between the two sets of counts and on account of the same system having been employed for both sets of offences … and that it was admissible to corroborate proof of the appellant’s identity and to prove their intent, as well as to negative possible defences …” (emphasis provided)

Reasons for the Ruling

31.Applying the legal principles stated in these statutory provisions and case law, it was readily apparent that the submission made by Mr. Shah that there was a time gap of almost 4 months between the signing of the respective charge sheets of these two cases was completely irrelevant to the issue under consideration.  It would have been proper for Mr. Shah to raise the question whether or not the charges (not the charge sheets) for these alleged offences were connected in point of time.

32.In R v Paul Baird[7], the appellant was convicted of two counts of indecent assault committed on boy A between May 1980 and August 1982, and one count of indecent assault committed on boy B in July or August 1991.  Despite a lapse of 9 years between the commission of the offences on the two victims, it was still held that the counts were properly joined together in the same indictment.  Nolan L. J. stated:

“It seems to us that a coincidence in point of time, like a coincidence in point of location, may be an important factor in determining whether or not particular offences can be regarded as being or forming part of a series, but every case must depend upon its own facts. This, we think, explains why there is no authority suggesting that, for the purposes of Rule 9, the component of any particular series of alleged offences must have been committed within a definite time span. As the authorities plainly show, the correct approach is to discover whether the alleged offences claimed by the prosecution to form part of a series are linked by a sufficiently close nexus to bring them within the Rule.”

33.It was therefore clear that the sole criterion for deciding whether two or more offences are of similar character is whether they had a sufficiently close nexus between them.  Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.  Coincidence or dissimilarity in time is only one of the factors to be taken into account.  I had considered whether the two charges in DCCC846 and the 17 charges in DCCC559 were linked together, either wholly or partly, in point of time as to when the alleged offences occurred to ascertain if there was a sufficiently close nexus between them.  I would return to this point later.

34.On the issue of nexus or connections between the alleged offences to be joined, Mr. Shah agreed that the charges in these two cases were similar, but he submitted that there had to be an overlap in terms of factual connections, i.e. the nexus of facts, citing the passage quoted above in R v Christou which was adopted by me in HKSAR v Khalif Abdul Nassor & Others[8] when I ruled that the charges against the two defendants in that case should be severed.  In other words, while Mr. Shah conceded that the charges sought to be joined by the prosecution had legal similarity, he insisted that they had no factual similarity that justified them to be joined together.

35.There was no doubt that the concession was correctly made by Mr. Shah that the two charges in DCCC846 were legally similar to the 17 charges in DCCC559.  In fact, the two charges in DCCC846 were identical in legal terms to Charges 1, 3, 4, 5, 6, 7, 8, 9 and 10 in DCCC559 as evidenced by the drafting of these 11 charges.

36.These 11 charges were all for the offence of conspiracy to defraud, contrary to common law and section 2(3) and 4(2) of the Criminal Jurisdiction Ordinance, Cap. 461 and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200.  The legal ingredients that constituted the offence in each of these 11 charges were exactly the same.  The particulars of each of these charges were nearly a replica of one another, and the only difference lay in the description of persons who had conspired with D1 to commit the offence.  In each of these charges, D1 was alleged to have conspired either solely or jointly with D2 and some other named and/or unknown persons as well as the Hong Kong spouses (i.e. PW1 to PW10) and their respective mainland spouses in the 11 bogus marriages (with PW1 marrying twice).  The victims in all these charges were the same, i.e. the Director of Immigration of Hong Kong Special Administrative Region and his officers.  The modus operandi of each alleged offence was the same, i.e. D1 and others conspired together for the relevant pair of bogus spouses to enter into a marriage and to falsely represent to the victims that the mainland spouse was entering Hong Kong for the purpose of visiting and reuniting with the Hong Kong spouse, thereby inducing the victims to act contrary to their public duty, i.e. to grant permission to the mainland spouse to enter Hong Kong under circumstances which they would not otherwise have granted.

37.While conceding legal similarities, Mr. Shah’s primary argument was that there were no factual similarities between any of the two charges in DCCC846 and any of the 17 charges in DCCC559.  However, the authorities relied upon by Mr. Shah (including my ruling in the case of Khalif Abdul Nassor) did not support the necessity to have both legal and factual similarities before two or more charges could be joined together in the same indictment or charge sheet.  On the other hand, the ruling made by Mustill L. J. in R v Marsh quoted above clearly showed that there was no such requirement.

38.Mr. Shah pointed to the fact that the civilian witnesses to be called in DCCC846 and DCCC559 did not overlap with one another to support his argument that these two cases had no factual nexus.  If this argument were correct, it would have meant that each charge of conspiracy to defraud involving one bogus marriage had to be tried on its own, because each of the Hong Kong spouses (PW1 to PW10) could only give evidence on the bogus marriage that he or she had entered into. However, Mr. Shah never asked for severance of the charges in DCCC559 and conceded that they were properly joined together[9]. In my view, the issue was whether there was factual similarity between all or some of the alleged offences in these two cases so that they could be described as a series of offences of the same or a similar character.  If they were, the charges for these alleged offences could be properly joined together.  Overlaps of witnesses might be one factor but certainly not the only factor to be considered.

39.Mr. Shah also pointed to the fact that D1 was the only defendant in DCCC846 and D2 was not involved at all to argue that the two charges in that case should not join with the charges in DCCC559.  Again, Mr. Shah did not argue that D1 and D2 should not be joined together in DCCC559.  In my view, so long as it was proper for D1 to face the charges in these two cases in the same trial, the fact that D2 was not a defendant in DCCC846 was irrelevant.  It was because the joinder of D2 in the same charge sheet was justified by the fact that she was jointly charged with D1 in some of the charges.

40.For the purpose of determining whether there were any factual similarities between the alleged offences in these two cases, I had considered the Summary of Facts very carefully.  I was of the view that the two charges in DCCC846 and each of Charges 1, 3, 4, 5, 6, 7, 8, 9 and 10 in DCCC559 had factual similarities in a number of respects. 

41.First, all 10 civilian witnesses in these two cases identified D1 positively in the photograph identifications they had respectively attended as one of the middlemen who had played a part in arranging the bogus marriages in question.  The involvement of D1 in each of these 11 conspiracies was by itself a remarkable factual similarity between these two cases, pointing strongly towards the direction that these offences were a series of offences committed by D1 and the others.  Besides, the evidence of PW9 and PW10 and the evidence of PW1 to PW8 in these two cases could support each other to prove the correctness of their respective identification of D1.  It was inherently improbable for 10 persons to misidentify D1 at the same time even though each one of them dealt with D1 independently at different points of time.

42.Second, according to the Summary of Facts, D1 was known as “On Jai” (安仔) not only to PW9 and PW10 in DCCC846, but also to PW1, PW5, PW7 and PW8 in DCCC559 (Charges 1&3, 7, 9 and 10).  In other words, these 6 witnesses knew D1 by the same name or nickname.  In addition, D1 was known to PW4 as “On Gor” (安哥) and to PW6 as “Ah On” (阿安) in respect of Charges 6 and 8 respectively in DCCC559.  While “On Jai”, “On Gor” and “Ah On” were not literally identical, it was open to the trial judge to take judicial notice that the local Cantonese-speaking people might use these different colloquial ways to address the same man whose name or nickname was made up wholly or partly with the Chinese word “On” (安), depending on how this man introduced himself or was introduced, and/or the age difference and/or the degree of proximity in relationship between the addressor and this man. 

43.In other words, 8 persons including the two civilian witnesses in DCCC846 and at least 6 out of the 8 civilian witnesses in DCCC559[10] could prove either individually or collectively by their evidence that the middleman whom they identified to be D1 used the same name or nickname as “On Jai” or its colloquial variations as “On Gor” or “Ah On” when D1 dealt with them.  Such a finding of fact (if made) was important for two reasons. First, the fact that these 8 witnesses identified D1 by the same or substantially the same name was probative in proving that their facial recognitions or identifications of D1 in their respective photograph identifications were correct.  Second, the real name of D1 was “Chen Jingwei” (陳景偉) which did not embody the word “On” (安).  The fact that D1 was using a name totally unconnected with his real name at the time of the alleged offences might give rise to the only reasonable and irresistible inference that he was concealing his true identity from the Hong Kong and the mainland spouses to the bogus marriages when he dealt with them, and he concealed his true identity because he had acted with others to arrange bogus marriages, and he knew full well what they had done was illegal and wrong.

44.Third, DCCC846 and DCCC559 had the factual similarity that the person recruiting all of the Hong Kong spouses except one (i.e. PW10[11]) to enter into bogus marriages was the same person known as “Hung Jei” (紅姐).  Evidence to this effect came from PW9 in DCCC846, and from PW1, PW4, PW5, PW6 and PW8 in DCCC559 (Charges 1&3, 6, 7, 8 and 10).  Furthermore, in DCCC559, PW2 would testify that she was recruited by a person called “Hung Yee” (紅姨).  “Jei” and “Yee” literally meant “elder sister” and “aunt”, and were used colloquially by the local Cantonese-speaking people to politely address a lady older than the addressor. Hence, it was again open to the trial judge to take judicial notice that “Hung Jei” and “Hung Yee” were same lady whose name or nickname had the Chinese word “Hung” (紅), depending on how this lady introduced herself or was introduced, and/or the age difference and/or the degree of proximity in relationship between the addressor and the lady. 

45.In addition, according to the particulars of Charges 4, 7, 8, 10, 11, 12, 13 and 14, one of the conspirators named in each of these charges was a person called “Chan Lai-yi” (陳麗伊) who was also known as “Hung Yee” or “Hung Jei” (as the case may be).  In other words, the factual similarity between the two cases was that PW9 in DCCC846 and 6 Hong Kong spouses in DCCC559 (i.e. PW1, PW2, PW4, PW5, PW6 and PW8) were recruited by the same person “Chan Lai-yi” who was known to them as “Hung Jei” or “Hung Yee” (as the case may be). 

46.It was also worth noting that while the Summary of Facts stated that PW3 was recruited by a “Miss Lee” (李小姐) (Charge 5) and PW7 was recruited by a “Fong Jei” (方姐) (Charge 9) in DCCC559, the particulars of these two charges stated that “Chan Lai-yi” was also known as “Miss Lee” or as “Fong Jei” respectively.  In other words, PW1 to PW8 in DCCC559 and PW9 in DCCC846 all identified the same person to be their recruiter who acted in concert with D1 to arrange them to enter into bogus marriages.  In addition to this factual similarity, when it was proved that “Chan Lai-yi” dealt with PW1 to PW9 with the name or nickname of “Hung Jei”, “Hung Yee”, “Miss Lee”, or “Fong Jei” (as the case may be), it meant that she was using not only different names but also all these names had no bearing at all to her real name, from which the trial judge might draw the only reasonable and irresistible inference that “Chan Lai-yi” was concealing her true identity from the Hong Kong and the mainland spouses to the bogus marriages when she dealt with them, and that she concealed her true identity because she had together with D1 and other persons were arranging bogus marriages, and that she knew full well what they had done was illegal and wrong.   

47.Furthermore, if the prosecution managed to prove that both D1 and “Chan Lai-yi” had used unreal names or nicknames to conceal their true identities at the same time, it was open to the trial judge to draw the reasonable and irresistible inference that they were acting in concert to embark upon a criminal enterprise of arranging bogus marriages.

48.Fourth, another factual similarity between these two cases was that when PW10 in DCCC846 and PW4 in DCCC559 were recruited to enter into bogus marriages with mainlanders by “a female middleman” (whose name was not stated in the Summary of Facts) and “Hung Jei” respectively, D1 was present together with the recruiters.  This factual similarity showed that the roles played by D1 in the conspiracies included recruitment of the Hong Kong residents to enter into bogus marriages, although D1 had actually done so on two occasions only.  In addition, when a global view was taken of the recruitment processes of PW1 to PW10, another important factual similarity emerged, i.e. D1 had never acted alone in these recruitment exercises[12], but a female (i.e. “Hung Jei” on 9 occasions and an unknown female middleman on one occasion) was present every time, and this female had got herself acquainted with each of the new recruits first before the meeting.  This pattern of conduct on the part of D1 and the female was clear evidence upon which the trial judge might infer that there was division of labour amongst D1 and his group, i.e. the female was responsible for recruitment of the Hong Kong spouses, while D1 was responsible for the work after the recruitment.

49.Fifth, after PW1 to PW10 were recruited to enter into the 11 bogus marriages in question, D1 and his group would direct and/or assist these Hong Kong spouses to obtain the necessary documents to fulfil the marriage registration requirements in the mainland.  Leaving aside those documents that were peculiar to some of the Hong Kong spouses[13], all of them had to apply for a Certificate of Absence of Marriage Record from the Immigration Department (“the Certificate”), and to sign a Declaration for contracting marriage in the mainland in a law firm (“the Declaration”). Evidence in this regard came from PW1 to PW10 which showed that D1 had played a significant role in obtaining these documents.

50.As far as obtaining the Declaration was concerned, the Summary of Facts showed that D1 had personally took PW9 and PW10 in DCCC846 to a law firm in Mongkok to sign the Declaration, and he had also taken or arranged PW1 to PW7 to go to a law firm to sign the Declaration for the purpose of entering into the bogus marriages that formed the subject matters of Charges 3[14] to 9 in DCCC559.  In other words, D1 was directly involved in obtaining the Declaration for 9 Hong Kong spouses out of a total of 10.

51.The Summary of Facts showed that D1 did not personally accompany PW1 or PW8 to a law firm to sign the Declaration for them to enter into the bogus marriages that formed the subject matters of Charges 1 & 10 in DCCC559 respectively. PW1 and PW8 were accompanied by “Hung Yee” and an unnamed female under the arrangement of “Hung Jei” respectively.  D1 was however still involved in the case of PW1 because before PW1 signed the Declaration, D1 had told PW1 over the phone that he was instructed by “Hung Jei” to tell D1 that PW1 had to prepare for some documents because “Hung Jei” had already arranged PW1 to marry a mainland woman.  In addition, while D1 did not assist PW8 to sign the Declaration, D1 did accompany PW8 to apply for the Certificate, and it was only after the application on the same day that PW8 met “Hung Jei” in Mongkok, and “Hung Jei” arranged an unnamed woman to bring PW8 to a law firm to sign the Declaration.

52.As far as obtaining the Certificate was concerned, D1 took PW9 and PW10 to the office of the Immigration Department in Tsim Sha Tsui to apply for the Certificate in DCCC846.  D1 had also accompanied PW7 and PW8 to make the application (Charges 9 & 10) in DCCC559.  Although PW1 to PW6 had to apply for the Certificate on their own or in the company of another middleman, it did not mean D1 had played no part at all.  As said before, D1 told PW1 over the phone that PW1 had to prepare some documents for him to enter into the first bogus marriage (Charge 1).  D1 also paid $500 to PW1 to apply for the Certificate for entering into the second bogus marriage (Charge 3).  He paid $1,000 to PW4 after PW4 had obtained the Certificate (Charge 6).  He paid several hundred dollars to PW5 to apply for the Certificate (Charge 7).  While he did not accompany or instruct PW2 or PW3 to apply for the Certificate, he took them to a law firm in Mongkok to sign the Declaration on the same day when they applied for the Certificate (Charges 4 & 5).

53.It was therefore clear that after PW1 to PW10 had been recruited to enter into bogus marriages with the mainland spouses, D1 and his group had directed and assisted them to obtain all necessary documents for fulfilling the marriage formalities in the mainland.  Most of the work in this regard were done by D1 rather than “Hung Jei” and the other middlemen, and this would be the cumulative effect of the evidence from the Hong Kong spouses in both cases.

54.Sixth, D1 was also involved in instructing or accompanying some of the Hong Kong spouses to go to the mainland to meet their respective mainland spouses and complete the marriage procedures there.  D1 accompanied PW9 and PW10 to go to Shanwei (DCCC846), and PW6 to go to the mainland, though the precise place was not stated in the Summary of Facts (Charge 8 in DCCC559).  D1 also instructed PW1 to travel to Shenzhen to meet another middleman “Ah Kuen” for the first bogus marriage (Charge 1), and to travel to Kaiping to meet the mainland spouse for the second bogus marriage (Charge 3).  D1 also instructed PW5 to go to Shenzhen to meet the middleman “Ah Kuen” (Charge 7).  PW2, PW3 and PW4 were accompanied by other middlemen to go to the mainland, whereas the case of PW7 was not clear[15].

55.Seventh, D1 was also instrumental in making payments to the Hong Kong spouses in both cases.  In DCCC846, D1 paid $2,000 to PW9 and $3,000 to PW10 as remuneration after they had obtained the Certificate and the Declaration to get married in the mainland, and after PW9 and PW10 had completed the marriage procedures in the mainland, each of them received $30,000 as rewards either from D1 or through the arrangement of D1.  In DCCC559, in addition to receiving $500 from “Hung Jei” and D1 each for applying the Certificates for the sake of entering into the two bogus marriages, PW1 also received $15,000 from D1 each time after he had completed the marriage procedures in Shenzhen and Kaiping.  PW4, PW5, and PW6 were the other Hong Kong spouses who were paid money in different stages by D1, i.e. monetary rewards and/or application fees for them to apply for the Certificate and to sign the Declaration, and monetary rewards after they had completed the marriage procedures in the mainland.  On the other hand, PW2, PW3, PW7 and PW8 received payments from the other middlemen such as “Hung Jei” and D2 but also in stages.

56.Eighth, there was a coincidence of time as to when the alleged conspiracy for each bogus marriage (Charges 1 & 3 to 10 in DCCC559 and the two charges in DCCC846) came into being.  In the particulars of each charge, the period in which each alleged conspiracy occurred was particularized.  The starting time was the time when the Hong Kong spouse named in that charge was recruited, and the ending time was the time when the last overt act of the alleged conspiracy was committed, for example, the time when the mainland spouse last entered Hong Kong on the strength of “Tanqin” exit endorsement obtained as a result of the false representation to the Director of Immigration and his officers. The starting time of each conspiracy was therefore the more important time factor to consider because it tended to show when D1 became allegedly involved in each conspiracy.

57.According to the particulars of these charges and the Summary of Facts, in DCCC846, PW9 was recruited in August 2016, and PW10 was recruited in a day unknown in early 2015.  In DCCC559, PW4 and PW6 were recruited in 2014, PW1 and PW5 were recruited in 2015, PW8 was recruited in February 2016, and PW2, PW3 and PW7 were all recruited in 2017 with PW1 being recruited again in August 2017.  It was therefore readily apparent that the conspiracies for the two alleged bogus marriages in DCCC846 took place within the same time frame as the alleged conspiracies for the 9 bogus marriages in DCCC559.  Put it in another way, the alleged conspiracies in DCCC559 occurred both before and after the two alleged conspiracies in DCCC846.

58.For the reasons aforesaid, there was no doubt whatsoever that Charges 1 & 3 to 10 in DCCC559 and the two charges in DCCC846 were factually similar in many material respects including but not limited to the persons involved and the modus operandi in which these conspiracies were entered into and carried out, and the parts played by D1 in each and every of these alleged offences were very similar and substantial. Other than the identity of each pair of spouses to each bogus marriage which was intrinsically different in each charge, it was beyond doubt that the facts surrounding each and every alleged conspiracy were substantially similar (if not strikingly similar), and the factual similarities were of such a degree that a sufficiently close factual nexus had been established between these alleged offences, not to mention that there was also a coincidence in time among them. There was no doubt that the facts of each of these alleged offences bore the same pattern and characteristics, and they could in all circumstances of the case be properly described as a series of offences of the same or similar character.

59.Not only the requirement of Rule 7 had been satisfied, it was also clear that the evidence of PW9 and PW10 and that of PW1 to PW8 were supportive of each other, and were admissible to corroborate proof of the identity of D1 and his co-conspirators, and to prove their intent at the time of the alleged offences, as well as to negative possible defences that D1 might raise, such as he was just an innocent pawn manipulated by others (such as “Hung Jei” and/or other middlemen) unwittingly.

60.Based on the above reasons, I found that joinder of the two charges in DCCC846 and Charges 1 & 3 to 10 in DCCC559 was completely justified, and that they should be heard together.

61.Since it was not disputed that Charges 1 to 17 in DCCC559 were properly joined in the same charge sheet, it followed that Charges 1 & 3 to 10 had to be heard together with Charges 2 & 11 to 17.  For this reason, it would also be proper for the two charges in DCCC846 to be heard together with Charges 2 & 11 to 17 in DCCC559.

62.The ultimate issue was whether the interest of justice was best served by having all these charges heard together.  The joinder even if justified under Rule 7 should not be ordered if hearing them together would or might cause any unfairness, prejudice or embarrassment to the person on trial.  In the present case, Mr. Shah did not identify any unfairness, prejudice or embarrassment that D1 might suffer.  In my view, if these charges had been joined in the same charge sheet in the first place, there would not be any justifiable ground to order severance of these charges under section 23(3) of the Criminal Procedure Ordinance. 

63.For these reasons, I made the order stated in paragraph 4 above.

Mr. Jeff Chan, Public Prosecutorof the Department of Justice, for HKSAR

Mr. Shah Mohammed Jawadullah, instructed by Sam Fu & Co., assigned by the Director of Legal Aid, for the 1^st Defendant in DCCC559/2019 and the Defendant in DCCC846/2019