HKSAR v. Lau Hoi Yuen

DCCC 239/2020

[2020] HKDC 904

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 239 OF 2020

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REASONS FOR SENTENCE

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The charge

1.The defendant (“D”) pleaded guilty to one charge of Conspiracy to make false instruments, contrary to sections 71, 159A and 159C of the Crimes Ordinance, Cap 200 and sections 2 and 6 of the Criminal Jurisdiction Ordinance, Cap 461.

2.The Particulars of Offence read as follows:-

“LAU Hoi-yuen, between a day unknown in late 2017 and the 18^th day of October 2018, both dates inclusive, in Hong Kong or elsewhere, conspired with a person known as “Ah Ling”, a person known as “Ah Fong” and a person known as “Ah Chun” to make false instruments, namely, false Hong Kong Identity Cards, false Construction Workers Registration Cards and false Construction Industry Safety Training Certificates, with the intention that others would use them to induce somebody to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice.”

Summary of facts

3.The Summary of Facts admitted by D shows that on 18 October 2018, D was arrested for “Forgery” as she was believed to have provided false HKID Cards (“HKIDC”) to illegal immigrants.  Under caution, she admitted that she had helped others deliver false identity cards to Hong Kong and earned HK$250 for each card.  1 i-Phone and 20 HK$500 banknotes were seized from her home.

4.D’s i-Phone was examined and was found to have various suspicious WeChat conversations with someone under the username of “Ling Ling”.  In 2 subsequent video-recorded interviews under caution conducted on 19 October 2018, D further admitted that at the end of 2017, her friend in Shenzhen named “Ah Ling” asked her to help deliver false HKIDCs from Shenzhen to Hong Kong in return for HK$250 per card.  She had done so for “Ah Ling” 10-20 times, carrying 1-4 false cards each time, on each occasion she would pass the false HKIDCs to either a Vietnamese male named “Ah Chun” or a Vietnamese female named “Ah Fong” at Sham Shui Po MTR Station.  They would both pay her in cash.

5.As to the WeChat messages in D’s i-Phone, they were also shown to D during the interviews.  There were at least 20 such messages, spanning between 2 July and 27 September 2018.  These messages related to at least 16 false HKIDCs, 2 false Construction Workers Registration Cards (“CWRC”) and 2 false Construction Industry Safety Training Certificates (“CISTC”).  The messages also referred to 3 genuine HKIDCs, 2 of which had been reported missing.  The messages also demonstrated that D, apart from being a courier of the false instruments, also passed on personal particulars of the users of the false instruments to “Ah Ling” and instructions to have them manufactured.  She also assisted Ah Ling in the production of some of the false instruments involved, eg editing the photographs involved, and made calculations as to how much “Ah Ling” would receive as a result of the illegal operations.

6.D admitted that she had gone to Mainland China on 11, 13 and 17 October 2018 to pick up false HKIDCs from Ah Ling to be passed to Ah Fong in Sham Shui Po.  She knew that most of the false instruments were for Vietnamese illegal immigrants.  Around HK$4,000 of the cash seized from her home was from Ah Fong and Ah Chun.  She had earned a little over HK$1,000 a month by helping Ah Ling deliver the false HKIDCs and had earned around HK$10,000 after less than a year.

7.The falsity of the HKIDCs involved was confirmed by the Immigration Department.

8.D admitted that at the material times she had conspired with Ah Ling, Ah Fong and Ah Chun to make false instruments as particularized in the Charge.

Background of D

9.D is now 45 years old, born in Mainland China in 1974.  She received education up to secondary level.  She got married in 1995 and gave birth to 3 children.  Her husband came to settle in Hong Kong in 2001 and she and her children joined him in 2006.  Unfortunately, her husband was deeply addicted to gambling with debt collectors kept troubling her family.  She finally divorced him in 2008 and without any means to support the family, she relied on Comprehensive Social Security Assistance to support her family.  After the daughters had grown up, she started to work to earn a living.  She worked in the insurance field initially in 2016, earning about HK$10,000 per month.  In early 2018 she was employed by a solicitor firm as a clerk, with similar monthly income.  She resigned in June 2020 as a result of the present proceedings.

10.D has a minor criminal record.  She was convicted of Breach of conditions of stay in 2002 and was fined HK$400.  She indicated to the probation officer that at the time she came to HK with a Two-way Permit but overstayed to give birth to her youngest son.  I have indicated that I will ignore this record and treat her as a person with clear record for the purpose of the present proceedings.

Mitigation

11.In mitigation, Ms See submitted that since the divorce in 2008, D had been in dire financial situation, as she needed to raise her three children alone.  In December 2017, her application for public housing succeeded.  As such, she needed money to pay rental deposits and renovation. Out of momentary impulse, she committed the present offence.  It is further submitted that D is not a greedy person, and she did volunteer work for the Hong Kong Department Stores and Retail General Union.  D is very remorseful for what she had done.  Since the arrest, she had been suffering from depressive disorder, as she is deeply concerned with the situation of her children.  Further, D was willing to provide assistance to the police but could not do so as the other culprits could not be located.  Mitigation letters written by D’s children, her previous employer and the Hong Kong Department Stores and Retail General Union were submitted in support.

12.Ms See submitted that the present case does not involve international element and that D only acted as a courier with very small monetary gain.  She urged the court to be as lenient as possible to D.

Sentence

13.There is no tariff for the offence of Conspiracy to make false instruments, each case depends on its own facts.

14.Ms Lan for the prosecution referred me to 2 cases, HKSAR v Baljit Singh unrep CACC 17/2018, [2020] HKCA 164 and HKSAR v Chu Ping Sheung unrep CACC 51/1998.

15.The facts of Baljit Singh, so far as it relates to the Charge of Conspiracy to make false instruments, were similar to the present case.  The syndicate mainly catered for non-refoulement claimants looking for jobs.  However, it only involved false HKIDCs and the appellant had acted as a courier simpliciter for a month for around 4 times.  The reward was that he was allowed to work in a restaurant earning about HK$1,500 per month.  The Deputy District Judge adopted 42 months as the notional starting point.  There was no complaint by the appellant on this starting point on appeal.

16.In Chu Ping Sheung, the appellant was caught selling 1 set of false documents including HKIDC, HK Passport, Japan tourist visa and China Two-way permit to 2 undercover police officers posing as over-stayers from Mainland China.  With the international element involved, the CA considered that 4½ years was an entirely proper starting point.

17.I have also considered the case of HKSAR v Chan Yip Chi  [2006] 2 HKLRD 181.  The appellant in that case was caught selling Temporary HK Identity Cards (“TIC”) to undercover ICAC officers.  He had a previous similar conviction.  The CA agreed with the learned trial Judge that TICs are easier to be forged but such conduct must be deterred and a starting point of 3½ years was considered appropriate.

18.The present case involved a well-organized syndicate with the manufacturing process based in Shenzhen.  It mainly catered for illegal immigrants from Vietnam.  The false HKIDCs would allow the buyers to continue to stay in HK illegally and to obtain employments.  The serious implications to the Identity Card system and the employment market in HK can readily be recognized.  This case is more serious as it also involved manufacturing and selling of false CWRCs and CISTCs.  Such false instruments would facilitate the users to obtain employment in construction industry where safety training was required.  Such requirements were in place to protect not only the workers themselves but others who worked alongside them.  By using these false instruments, the users would be able to work in construction sites without having received the required safety training.  Both themselves and the innocent hard-working fellow workers would be exposed to unjustified physical danger.

19.D had been involved in this illegal syndicate for at least a year.  Her role was much more than a courier simpliciter, having been involved in placing orders, assisting in the processing of photographs and the calculation of payments.

20.Having taken all relevant matters and submissions by counsel into consideration, for the present offence I adopt 4 years as the starting point.  For D’s personal background and previous good character, I reduce the sentence by 3 months.  The sentence is further reduced by 1/3 for the timely guilty plea.  The defendant is sentenced to 2 years and 6 months’ imprisonment.