HKSAR v. Cheng, Kell Hiu Fai

HCMA 409/2021

[2021] HKCFI 3762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 409 OF 2021

(ON APPEAL FROM STCC 1768 OF 2021)

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Before: Hon Campbell-Moffat J in Court

Date of Hearing: 11 November & 13 December 2021

Date of Judgment: 13 December 2021

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JUDGMENT

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Introduction

1.The appellant pleaded guilty before the Shatin Magistrates’ Court to one charge of signing a false notice for the purpose of procuring a marriage contrary to s34(a) of the Crimes Ordinance, Cap 200 and one charge of Bigamy contrary to s45 of the Offences Against the Person Ordinance, Cap 212 on 6 August 2021.  On 9 August 2021, he was sentenced to 3 months’ imprisonment on each charge to be served concurrently.  By his Notice of Appeal against sentence dated 11 August 2021, the appellant seeks to appeal that sentence on the grounds that it was too severe.  He was granted bail pending appeal.

2.The facts of the case are very simple.  The appellant married PW1 on 30 October 1999, in Canada.  Both the appellant and PW1 are holders of Canadian passports.  She applied for a dependent visa to the Hong Kong government in 2004 and lived with the appellant in Hong Kong from that date.  The appellant had reported being married to PW1 in 1999 to the appropriate HKSAR department and sponsored the visa applications of PW1 in both 2008 and 2012 as his spouse.  In 2014, PW1 applied for a divorce in Singapore, which was made absolute on 30 March 2015.  However, prior to that divorce, on 16 November 2009, the appellant filed a notice of intended marriage to X declaring himself at that time to be a bachelor.  He married X on 26 December 2009, whilst still being married to PW1.  He compounded that wrong when he then went on to hold himself out as still married to PW1 in 2012 for the purposes of her visa application.  X is a resident of the mainland.  This matter came to light when X sought a One‑way Permit in 2019.

3.The appellant pleaded guilty to the offences.  In mitigation the Court was told that the appellant was 48 years of age and a university lecturer with a doctoral degree.  He was of good character.  The marriage to PW1 had broken down by the time he married X in 2009 and PW1 had suffered no harm as a result.  Mr Reading SC, on his behalf, suggested that the appellant had assumed that he was divorced when he married X even although he had made no effort to satisfy himself that such was the case.  This does not answer for the fact that he went on to sponsor PW1’s subsequent visa application in 2012 as her husband.

4.For the purpose of sentencing, the learned magistrate quite properly focused upon the issue of the knowledge of the appellant rather than the state of his relationships.  Clearly he did have a genuine relationship with both women at some point in time.  I do not accept the suggestion made by Counsel on behalf of the appellant that he believed himself divorced in 2009, especially in the light of his subsequent action when, having married X, he nevertheless held himself out as still being married to PW1 in 2012.  This was an intelligent man who knew full well that he was already married at the time he entered into the bigamous relationship with X.  He had not been informed at that stage that he was divorced by his first wife and, according to him, he did not check.  It would have been exceptionally easy to check whether that was the case or not especially as he appeared to have remained on speaking terms with PW1.  He compounded his culpability by continuing to hold himself out as being married to PW1 when, subsequent to his bogus marriage to X in 2009, he nevertheless went on to support the renewed visa application of PW1 as his dependent in 2012 at a time he either knew she had not divorced him or he knew he was married to X.  Either he was still married and knew it or he was divorced and was deliberately misleading the Hong Kong government.  Either way, his behaviour was unacceptable.  The evidence suggests he sought to deceive the Director of Immigration as to the true status of PW1, being his wife but not cohabiting as such, knowing full well that the visa application would not have been renewed had the Director known the true state of play.  That deceit led to PW1 being afforded the opportunity to become a permanent resident of Hong Kong, which she would clearly not have been able to do without this charade.  This was further compounded by the fact that he did nothing to regularise his status with X having, according to him, found out that his wife had not divorced him in 2012.  Indeed, he did nothing at all until 2019 when the matter came to light because X applied for a one-way permit.  By this time X had given birth to their first child.  That this deception was being carried out by someone of stature within our educational establishment is all the more disappointing.  One would expect a university lecturer in charge of young adults to lead by example and this was a deliberate mischief.

Conclusion

5.The Magistrate correctly applied the relevant legal principles.  The decision of Beeson J in HKSAR v Lam Ka Wing HCMA 56/2000 is apposite.  The degree of blameworthiness upon these facts is considerable although not as serious as the case before the Court in Lam Ka Wing.  The personal situation between the appellant and PW1 and the appellant and X is not paramount to sentencing on these facts.  Whilst the appellant should be given credit for his good character, he cannot seek some form of discount by reference to the likely effect any sentence will have upon his employment when he made a deliberate choice to “play the system” as he did.  Nor is it the case, once he reports this conviction under his contractual obligation so to do, that he will necessarily lose his current post.  There is absolutely no excuse for a man in his position to have done as he did.  The public must understand that the rules by which we are all required to live are applicable to all of us no matter what status we have.  No one should manipulate those rules to their own ends and if they do so, then they must expect the appropriate sanction.  However, in all the circumstances of this case, whilst this offending must be marked by a term of imprisonment, it would be unduly harsh if that term was to make it inevitable that the appellant’s contract of employment would be terminated.  The Court should look to all the surrounding circumstances both to the nature of the offending and to the situation of the appellant.  Accordingly, I will reduce the starting point from 4½ months to that of 3 months on each count and give the appellant the full one‑third discount for his pleas at the earliest opportunity, both sentences to run concurrently making a term of imprisonment of 2 months.

6.There will be no order as to costs.

Ms Joyce Poon, PP, of the Department of Justice, for the respondent

Mr John Reading SC, instructed by JWC Solicitors, for the appellant