HKSAR v. Chen Jingwei and Another

DCCC 559 & 846/2019 and 276/2021
(Consolidated)

[2022] HKDC 729

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 559 & 846 OF 2019 AND 276 OF 2021

________________________

________________________

________________________

Reasons for Sentence

________________________

1.The defendants have each been convicted on a number of charges on this indictment. I am now required to pass sentence.

2.The facts of the offences of which the defendants are being convicted can be found in my reasons for the verdicts that I have passed on the defendants.  I do not propose to reiterate those facts again today because they can be found, as I have said, within the verdict.

3.The overall offences for which the defendants are being convicted relate to their role in the provision of what we have described here as fake or false marriages for Mainlanders so that they could come to Hong Kong in order to obtain residency or hospital services or Hong Kong Re-entry Permits.

4.The modus operandi in each of the cases was effectively the same, that a financial reward would be offered in an exchange for an agreement to marry a Mainland stranger and provide supporting documents in order to help the sham spouse move to Hong Kong, give birth in a Hong Kong hospital or settle in Hong Kong, and all the charges of which the defendants are being convicted are variations upon a similar theme.

5.The defendants’ involvement in these offences has been described again as being middlemen.  The defendants, on my findings, are facilitators of the offences, but in reality they are really a form of administrative officers, they simply are taking the sham spouses through some of the administrative things that need to be done and assisting them in going, on occasions on going to the Mainland to perform the weddings.

6.They are of course a necessary part of these conspiracies and they have a substantial involvement.  However, it does not appear on the evidence one could describe in any way as being the masterminds. They are the workers within these conspiracies.

7.As far as the sentencing on these offences is concerned, it is almost common ground that the normal sentence to be passed in respect of a conspiracy such as this is one of 18 months’ imprisonment on a person of clear record who has pleaded not guilty.  So that will be the starting point that I will be, of necessity, having to adopt in respect of each of the charges.

8.Now I will turn to the defendants’ backgrounds and what I must consider in relation to them.

9.The 1^st defendant, Mr Chen, convicted on six offences but effectively five separate conspiracies or occasions of conspiracy.  He is now aged 45, he is married, has young children aged the eldest being a Form 2 graduate, so all the children appear to still be in some form of education.  They seem to be well-educated and well looked after.

10.The defendant is described as a man who was born in the Mainland from a farming family.  He joined his wife here in 2007, has limited education and skills, has only been able to secure labour work with a meagre income, has depended to a certain extent on CSSA and has made a life here.

11.The defendant has, by my recollection, one previous conviction but it is of no relevance to the sentencing today and so I shall ignore it as far as sentencing is concerned.

12.Now, the 2^nd defendant is a 52-year-old female. She is described as again coming from a farming family in Fujian, China.  She is the eldest of the family.  She has been married and divorced.  She has mainly worked as a construction site worker prior to her time here.  She has established a medical condition which, by the way of certain reports produced today, the defendant appears to be suffering from what is described as lymphoma which is a form of a thyroid problem.

13.Those are the backgrounds of the defendants, so I now turn to the imposition of sentence.  The order I shall make is to impose a sentence of 18 months’ imprisonment on each charge that the defendants have been convicted of.  That would be, on Charge 4, the 2^nd defendant to face a sentence of 18 months’ imprisonment; on Charge 5, both defendants 18 months’ imprisonment; Charge 8, the 1^st defendant 18 months’ imprisonment; Charge 9, the 2^nd defendant 18 months’ imprisonment; Charge 10, the 1^st defendant 18 months’ imprisonment and 2^nd defendant, 18 months’ imprisonment; Charge 14, 18 months’ imprisonment for the 1^st defendant; Charge 18 and 19, 18 months’ imprisonment for the 1^st defendant; then on Charge 20, 18 months’ imprisonment for the 2^nd defendant.

14.I now have to determine the overall sentences that should be imposed by way of an overall total.  Now, these are relatively serious offences committed over a period of time.  The defendants have, as I say, a substantial involvement in them.  I do take into consideration when sentencing today that some of the offences are of some age now and, secondly, the defendants have undergone what I would describe as a rather lengthy and difficult trial process conducted throughout the pandemic which has caused considerable difficulties to all parties and the defendants have been careful to ensure their attendance throughout in a most disciplined manner and an impressive manner and have themselves facilitated the conduct of this trial, and so they will get some benefit for that.  They will also get some benefit for the fact that some of the cases are of some antiquity which means there is an element of delay.  As far as delay is concerned, I do not attribute that to any fault by any party.  It appears to be inevitable in the way these charges have been brought and the way in which they have had to have been conducted.

15.I consider for the both defendants, at the end of the day, after the convictions have been recorded, their involvement in these offences, this series of offences would appear to be similar and so I will impose the same sentence on each.  I wold have normally taken an overall sentence for all these offences of 36 months’ imprisonment.  However, I shall reduce that for both defendants by 3 months’ imprisonment to take account of the crediting factors that I have already set out.

16.So my final sentence on both defendants, the totality being one of 33 months.  I will achieve that as follows: on the 1^st defendant, I will order that Charges 5, 8 and 14 and 10 be served concurrently to each other, and 18 and 19 served concurrently to each other but 15 months of those consecutive to 5, 8, 14 and 10 gives an overall total of 33 months.  For the 2^nd defendant, 4, 5 and 9 will be served concurrently to each other, 10 and 20 concurrently to each other, but 15 months consecutively to 4, 5 and 9.

17.By my calculations, that gives an overall total of 33 months’ imprisonment in respect of each defendant and that is the sentence that I would impose for these offences.