HKSAR v. Fonte, Leilaw

HCMA 229/2024

[2025] HKCFI 3716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 229 OF 2024

(On appeal from STCC 623/2023)

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BETWEEN

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JUDGMENT

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1.The Appellant was convicted upon her own pleas of a total of eight charges and sentenced as follows:-

(a) One count of “conspiracy to use an identity card relating to another person” (Charge 1), 15 months’ imprisonment.

(b) One count of “dealing with property known or believed to represent proceeds of an indictable offence” (Charge 2), 12 months’ imprisonment.

(c) Three count of “transferring an identity card to another person” (Charge 3, Charge 4 and Charge 5 respectively), 12 months’ imprisonment each.

(d) One count of “conspiracy to deal with property known or believed to represent proceeds of an indictable offence” (Charge 6), 12 months’ imprisonment.

(e) One count of “conspiracy to defraud” (Charge 7), 12 months’ imprisonment.

(f) One count of “making a false representation to an Immigration Officer lawfully acting under or in the execution of Part III of the Immigration Ordinance” (Charge 8), 12 months’ imprisonment.

2.The Magistrate ordered 3 months’ imprisonment of each of the sentences for Charges 2 to 8, making a total of 21 months’ imprisonment (3 months x 7), to run consecutively with the 15 months’ imprisonment for Charge 1. The total sentence was 36 months’ imprisonment.

3.The Appellant now appeals against the sentence.

The Facts

4.After pleading guilty to all the charges, the Appellant admitted these facts as summarized by the Magistrate:-

(a) On 7 July 2022, Immigration Officers conducted an operation at a restaurant called “Hexa” in Tsim Sha Tsui and found a Filipino female Miss Ibon working in the kitchen. Miss Ibon first presented an identity card in the name of the Appellant for checking. Upon further investigation, Miss Ibon then produced her own identity card to the officer.

(b) Records revealed that Miss Ibon was a former domestic helper who was only permitted to remain in Hong Kong until 11 January 2007 or two weeks after termination of her employment contract but she did not leave and had since then overstayed in Hong Kong for 15 years and 5.5 months.

(c) On 7 September 2022, Immigration Officers conducted another operation at a fast food restaurant “Fairwood” in Shau Kei Wan and found an Indian male Mr. Shah in working gears inside the kitchen. Mr. Shah was a Form 8 holder with removal order in force. He was prohibited from taking up any employment whether paid or unpaid. However, he had worked at the said restaurant since 2020 up to March 2022 with a monthly salary of around $10,000. He borrowed an identity card and a Hang Seng Bank card from his friend Mr. De Austria for the above job.

(d) Further, Mr. Shah had submitted an application for dependent visa in Hong Kong in which the Appellant was listed as his wife as well as his sponsor. In support of that application, Mr. Shah also submitted an employment contract in the name of the Appellant and a company called “Aqua” the working location of which was a restaurant known as “Hutong” and a confirmation letter issued by Aqua to the Appellant.

(e) A total of five records of interview had been taken from the Appellant by Immigration Officers, where the Appellant admitted, among other things, the following:-

(i) She knew Mr. Shah was not lawfully employable in Hong Kong and she asked Mr. De Austria to lend his identity card and Hang Seng Bank card to her so that Mr. Shah could use them to apply for a job at Fairwood in July 2020 (Charge 1).

(ii) Records revealed that a total sum of $414,781.33 involving 25 months’ salaries were transferred from Fairwood to Mr. De Austria’s Hang Seng Bank account and Wing Lung Bank account from 6 August 2020 to 5 August 2022 and on 7 September 2022 respectively. The monies had been withdrawn by the Appellant using Mr. De Austria’s Hang Seng Bank card and Wing Lung Bank card at the material times (Charge 2).

(iii) The Appellant lent her identity card to Miss Ibon in 2016, 2021 and 2022 respectively so that Miss Ibon could use it for job application and subsequently securing employment (Charges 3 to 5).

(iv) Miss Ibon was subsequently employed by a company called “Aqua” in 2017 by using the Appellant’s identity card. The Appellant, though never worked for Aqua, would receive $2,500 from Miss Ibon as monetary reward on a monthly basis.

(v) After Miss Ibon had stopped working for Aqua and started working for another company since September 2021, the Appellant would still receive monetary reward from Miss Ibon but it was reduced to $300 monthly.

(vi) The Appellant lent her HSBC bank account to Miss Ibon for receiving salary from Aqua and she also lent her HSBC bank card to Miss Ibon for withdrawing cash from that account. According to the HSBC bank records, a total sum of $596,611.40 was transferred from Aqua to the Appellant’s HSBC account from July 2018 to September 2021 (Charge 6).

(vii) In 2018, the Appellant lent her identity card and HSBC bank account to Miss Ibon for applying for a loan at UA Finance so that Miss Ibon was able to use the Appellant’s identity to borrow $10,000 (Charge 7). Miss Ibon paid $1,000 as reward to the Appellant.

(viii) In order to support Mr. Shah’s application for his dependent visa, the Appellant used the employment contract of Aqua together with a confirmation letter in the name of the Appellant (these documents were issued to Miss Ibon when she used the Appellant’s identity to work at Aqua) and submitted them as proof of employment and income to the Immigration Department. The Appellant also deceived the Immigration Department into believing that she was earning the income as stated in that contract with Aqua when her actual income as a part-time cleaner was far less (Charge 8).

Appellant’s Background and Mitigation

5.The Appellant is 56 years of age and a Hong Kong permanent resident. She has a previous criminal record of breach of condition of stay in 1995. She used to work as a cleaner earning around $14,000 per month. Since October 2023, she has been suffering from stage 3 cervical cancer.

6.The Appellant first came to Hong Kong in 1991 as a foreign domestic helper and got married with a Hong Kong permanent resident in 1995. They had a son but the marriage ended in 2003. Thereafter, she gave birth to two more sons with her ex-boyfriend. These two sons are now 19 years old and 14 years old respectively, both students and are residing in the Philippines with the Appellant’s 86-year-old mother. The Appellant is responsible for financially supporting both her mother and her two sons in the Philippines.

7.Mr. Shah is in fact the Appellant’s current husband. They got married in Hong Kong in 2019. Since Mr. Shah is a Form 8 holder who is not allowed to work in Hong Kong, the Appellant is therefore the sole breadwinner for not only Mr. Shah but also Mr. Shah’s family members in India. It was out of this financial hardship and against this background that these offences were committed.

8.For Charges 1 and 2, the Defence Counsel (not Counsel now for the Appellant) invited the Court to consider them together as the same incident. Charge 1 involved the Appellant and Mr. Shah using Mr. De Austria’s identity card for Mr. Shah to work at Fairwood, and subsequently giving rise to Charge 2, the laundering of 410,000 odd dollars from Fairwood as the wages earned by Mr. Shah.

9.For Charges 3 to 6, the Defence Counsel invited the Court to consider them together as the same incident. Charges 3 to 5 all involved the Appellant lending her identity card to Miss Ibon to use the Appellant’s identity to work at Aqua, which then gave rise to Charge 6, the money laundering of 590,000 odd dollars from Aqua to Miss Ibon as wages earned.

10.For Charge 7, the Defence Counsel submitted that it was a one-off and opportunistic offence in 2018 and that the loan in question had been fully repaid.

11.For Charge 8, it was committed out of the Appellant’s foolishness because of her anxiety that Mr. Shah’s dependent visa would not be granted by the Immigration Department if the Appellant could not provide any proof of income.

12.Finally, in view of the Appellant’s frank admissions, remorsefulness, her health conditions and the totality principle, the Defence Counsel asked for the greatest possible leniency from the Court.

The Magistrate’s Reasons for Sentence

13.For Charge 1, “conspiracy to use the identity card of another”, the Magistrate applied the sentencing guideline in HKSAR v Li Chang Li [2004-2005] HKCLRT 193, adopted a starting point of 22.5 months’ imprisonment and reduced it to 15 months’ imprisonment for the Appellant’s guilty plea.

14.For Charge 2, the “money laundering” offence, the Magistrate considered that it was serious as it involved quite a significant amount of money ($414,781.33 involving 25 months' salaries of the Appellant’s husband) and that the offence lasted for more than two years.

15.The Magistrate identified some of the more common factors to be considered for this kind of money laundering offence, like the amount of money involved, the degree of sophistication of the operation, the defendant's knowledge of the nature of the underlying offence and whether or not there was an international element in the commission of the offence (SJ v Herzberg [2001] 1 HKLRD 502). He then made reference to the case SJ v Wan Kwok Keung [2012] 1 HKLRD 201 in which the Court of Appeal held that for the amount involved between $1,000,000 and $2,000,000 the starting point should be 3 years or so. Having considered the amount involved and the length of the offence period, the Magistrate adopted a starting point of 18 months and reduced it to 12 months’ imprisonment because of the Appellant’s guilty plea for Charge 2.

16.Charge 3, Charge 4 and Charge 5 all involved the Appellant transferring her identity card to Miss Ibon for her to seek and secure employment on three separate occasions in 2016, 2021 and 2022 respectively. The Magistrate opined that they could not be regarded as the same incident as the defence submitted. The transfer of the identity card was for Miss Ibon to hide her own identity as an overstayer and seek unlawful employment. The seriousness of these offences lied in taking away the job opportunities of local residents thereby causing serious social and economic problems.

17.While stating that there is no sentencing guideline for these offences of “transferring identity card belonging to another”, the Magistrate also applied the sentencing principles in the said case of Li Chang-li, adopted a starting point of 18 months’ imprisonment and reduced it to 12 months’ imprisonment because of the Appellant’s guilty pleas for each of Charges 3 to 5.

18.For Charge 6, a conspiracy of “money laundering”, the Magistrate took the view that the severity of the offence lied in the fact that without the lending of the Appellant’s bank account to Miss lbon, the latter would not have been able to secure employment. Another serious aspect was that the account was lent for this illegal purpose from July 2018 to September 2021 and that was over 3 years. With reference to the said case of Wan Kwok Keung, the Magistrate adopted a starting point of 18 months’ imprisonment and reduced it to 12 months’ imprisonment for the Appellant’s guilty plea.

19.For Charge 7, “conspiracy to defraud”, the Magistrate took the view that the Appellant’s role was essential to carry out the fraud not just because she lent her identity card to Miss Ibon but that she would have to provide other documents such as employment contract, salary proof and proof of address for Miss Ibon in support of the fraudulent loan application. Conspiracy to defraud a financial institution is a serious offence and the plan was sophisticated. The Magistrate, having considered the seriousness of the offence, adopted a starting point of 18 months’ imprisonment and reduced it to 12 months’ imprisonment for the Appellant’s guilty plea.

20.For Charge 8, “making a false representation to an immigration officer”, the Magistrate pointed out that it was obviously well planned by the Appellant beforehand so that her husband could come to Hong Kong as a dependent. The Magistrate took the view that the circumstances were at the most serious end that was equivalent to making false representations by production of false documents. With reference to several case authorities like HKSAR v Yim Lee Kuen HCMA 1187/2002, HKSAR v Mohamed Naseer Ahamed Fazloon HCMA 827/2010 and HKSAR v Pahila [2007] 1 HKLRD 410, the Magistrate adopted a starting point of 18 months’ imprisonment and reduced it to 12 months’ imprisonment for the Appellant’s guilty plea.

21.The Magistrate was of the view that each of the above offences were separate and distinct in nature, but taking into account the totality principle, there should be partially consecutive sentences. Finally, taking into account the totality principle, as well as the Appellant’s guilty pleas and her stage 3 cervical cancer, the Magistrate ordered that 3 months of each of the sentences of Charges 2 to 8 (i.e. a total of 21 months) were to run consecutively to the 15 months’ imprisonment of Charge 1 and so arriving at a total of 36 months’ imprisonment.

Grounds of Appeal

22.The Appellant relies on a total of three grounds of appeal:-

(a) Ground 1: the Magistrate erred in adopting a starting point that is manifestly excessive for each of Charges 2 to 8 (no complaint for that of Charge1).

(b) Ground 2: the Magistrate erred in imposing a sentence that is insufficient to reflect the proportionality between the offences committed and the sentences imposed.

(c) Ground 3: the Magistrate erred in failing to give any meaningful discount.

My Decision

23.I have considered all the written submissions by the parties. Without repeating all the arguments here, I shall instead deal with them separately in the subsequently analysis.

24.I shall first deal with Ground 1 which complains about the individual starting points for Charges 2 to 8 being manifestly excessive. The Appellant divided this ground into four parts: (a) Charges 3 to 5 which are all offences of “transferring an identity card to another person”, (b) Charges 2 and 6 which are both “money laundering” offences, (c) Charge 7 which is an offence of “conspiracy to defraud” and (d) Charge 8 which is an offence of “making a false representation to an Immigration Officer”.

25.For Charges 3 to 5, the Appellant relied on HKSAR v Liaqut Ali Khan HCMA 278/2009. That appellant lent his passport and his identity card to another person, checking in for the flight at the airport for that person who was going to use those document and was given 18 months’ imprisonment after trial. The Appellant submitted that the current case should be less serious as it did not involve any “international element” or “additional steps” of assisting the other person.

26.It is not useful at all to compare cases which are of the same offence but with completely different facts. I am not persuaded that this case is any less serious than Liaqut Ali Khan. As rightly pointed out by the Magistrate, the seriousness of Charges 3 to 5 lied in the Appellant’s assistance given to Miss Ibon to hide her identity as an overstayer to obtain unlawful employment, which resulted in taking away job opportunities of the local residents thereby causing serious social and economic problems.

27.For Charges 2 and 6, both “money laundering” offences, the Appellant relied on 香港特別行政區 訴 楊金平 HCMA 136/2017, a case which involved 1,120 transactions of more than 1 million over a period of 86 months but only ended up with a starting point of 16 months’ imprisonment, argued that the current case should be less serious and therefore should not warrant a starting point of 18 months’ imprisonment. The Appellant also argued that there was no “latent risk” of uncontrolled use of the accounts involved.

28.The Respondent, on the other hand, relied on two other cases, 香港特別行政區 訴 鄭家偉 HCMA 106/2013 (the total amount being laundered was HKD$294,800 over two months and a starting point of 15 months’ imprisonment) and香港特別行政區 訴 方志鑫 [2020] 2 HKLRD 687 (the owner of a money exchange shop for 2 money laundering charges involving sums of HK$409,000 and HK$37,100 respectively and was given starting points of 2.5 years’ imprisonment and 1 year’s imprisonment respectively), submitted that the starting point of 18 months’ imprisonment in this case was not manifestly excessive.

29.The Respondent, in particular, argued that the present case was not a case where the Appellant merely lent his account to others for their use but had full knowledge of the predicate crime since the beginning. For Charge 2, the Appellant was even a direct beneficiary of the crime proceeds. In each of Charges 2 and 6, the offence period lasted for over two years which showed a certain level of premeditation and planning on the Appellant’s part. It was submitted that, to a certain extent, the Appellant was the mastermind who orchestrated the lending of her own account to Miss Ibon and the borrowing of De Austria’s account for her husband so that both could work illegally and reap the full rewards out of it.

30.The Respondent also disagreed with the Appellant’s contention that there were no “latent risk” of uncontrolled use of the accounts in question. It was submitted that Mr. De Austria’s bank card was at the Appellant’s disposal the whole time during the offence period and as such, there was nothing to stop the Appellant to have that account for any other unlawful use.

31.I have considered all the above submissions, agreed with those by the Respondent and do not accept that the starting point of 18 months’ imprisonment adopted by the Magistrate for each of Charges 2 and 6 is manifestly excessive.

32.For Charge 7, apart form 香港特別行政區 訴 徐梓銘 HCMA 334/2018 which is of completely different facts (that appellant whilst being disqualified used his brother’s identity card to rent a car), the Appellant mainly relied on 香港特別行政區 訴 項詠彤 HCMA 350/2021 where that appellant induced the victim to obtain a loan of $100,000 by certain misrepresentations and was sentenced to 10 months’ imprisonment after trial. The Appellant therefore argued that the current case which only involved a loan of $10,000 and was fully repaid should not have attracted a starting point up to 18 months’ imprisonment.

33.The Respondent submitted that, in 香港特別行政區 訴 文錦輝 CACC 309/2009, the Court of Appeal observed that there were no sentencing tariffs for cases involving the use of false instruments or the provision of false information in obtaining loans from financial institutions, the reason being that such cases could take many forms and a generalized approach in sentencing should not be appropriate. Nevertheless, the Court of Appeal took the view that participation of more than one person as well as the use of false instrument in addition to making false representation were both aggravating factors.

34.First of all, as right pointed out by the Respondent, the case of 項詠彤 relied upon by the Appellant in arguing the starting point for Charge 7 being too high was an appeal against conviction rather than an appeal against sentence. As such, that case is of very limited use, if any, for the present purpose. In addition, in the present case, Miss Ibon would not have been able to borrow from the financial institution without using the Appellant’s identity card and assuming her identity. The use of an identity card relating to another was instrumental to Miss Ibon obtaining a loan through deception.

35.The Respondent relied on the authority Secretary for Justice v Tsang Wai Ling [2020] 4 HKLRD 208, the Court reaffirmed the proposition that committing a criminal act by using an identity card which related to another person alone could have attracted a starting point of over 20 months (see paragraph 39 of the judgment).

36.Going back to the present case, it was a conspiracy between the Appellant and Miss Ibon for the latter to obtain a loan of $10,103 from UA finance by using the Appellant’s identity card and HSBC account. As such, as rightly observed by the Magistrate, not only that the Appellant had lent her identity card to another, but she had also assisted by providing Miss Ibon with the use of the Appellant’s bank account. As such, the real identity of the person who obtained the loan, i.e. Miss Ibon, had been concealed and that the lending financial institution was at high risk when providing the loan in question. Though the loan amount was not huge and that it was eventually repaid, the offence remained serious. I am not persuaded that the starting point of 18 months for Charge 7 as adopted by the Magistrate is manifestly excessive.

37.For Charge 8, the Appellant relied on the authority HKSAR v Bodomo Marissa Flores [2005] 4 HKLRD 285 and suggested that, the offence was about the Appellant deceiving the Immigration Department into thinking that she earned more money than she actually did by submitting the relevant employment contract and confirmation letter, and that the appropriate starting point should be 6 months’ imprisonment.

38.First, the Appellant overlooked the fact that, under that Charge 8, the employment contract and the confirmation letter submitted to the Immigration Department were not genuine documents relating to the Appellant’s employment (a part-time cleaner) at all. They were in fact documents issued to Miss Ibon when she used the Appellant’s identity to work at Aqua. That apparently added to the seriousness of the offence.

39.As correctly cited by the Magistrate, in HKSAR v Mohamed Naseer Ahamed Fazloon HCMA 827/2010, Mackintosh J held that "Sentencing practice for the offence of making false representations to an immigration officer whether by name or date of birth or production of false or forged document is now well established. As McMahon J said in a case called HKSAR v Pahila [2007] 1 HKLRD 410, these are to be regarded as serious offences for which term of imprisonment starting at 18 months is appropriate." (paragraph 11 of the judgment).

40.In Attorney General v Ching Wai Fan Carina [1995] 2 HKC 217, as submitted by the Respondent, which was an application for review of sentence where there were conspiracies involving the use of false or forged employment contracts and other documents furnished to the Immigration Department in support of applications for domestic helpers from the Philippines for visas, the Court of Appeal when dismissing the application did not disturb a starting point of 18 months’ imprisonment for each of the five charges of conspiracy to defraud. Nevertheless, the Court of Appeal expressed that “there was somewhat a benevolent view and that the level of sentence for this type of offence has hitherto been unduly low” and that “those who commit this type of offence in the future can expect to be dealt with more severely” (220G).

41.Here the Appellant under Charge 8 made a false representation with false employment documents to the Immigration Department in support of her husband’s dependent visa application, clearly with a view to deceiving the Immigration Department to grant her husband permission to enter and remain in Hong Kong which he was not entitled to. The starting point of 18 months’ imprisonment as adopted by the Magistrate is in no way manifestly excessive.

42.For the above reasons, Ground 1 fails.

43.I now proceed to deal with Ground 2. The Appellant’s complaints are that the Magistrate failed to explain at all as to why 3 months each of Charges 2 to 8 resulting in a total of 21 months should run consecutively to the sentence of Charge 1 and that, in any event, the final total sentence of 36 months’ imprisonment well exceeded the Appellant’s overall criminality.

44.First of all, by simple calculation, I observe that the final total sentence of 36 months’ imprisonment after the Appellant’s timely guilty pleas means a notional overall starting point of 54 months, i.e. 4 and ½ years’ imprisonment.

45.Then I observe that Charges 3 to 5 (all charges of “transferring an identity card to another”) though being distinct and separate charges, the subject matter being the same was that the Appellant had permitted Miss Ibon to use the Appellant’s identity card to obtain or secure employment fraudulently from three different employers in 2016, 2021 and 2022 respectively. Whilst I agree with the Respondent’s submission that those three charges could not be considered as one single transaction or having stemmed from one single incident, the additional 9 months’ imprisonment in total out of those three charges (3 months for each) is at least arguably too harsh.

46.For the Appellant’s background, I do not lose sight of the fact that She has only one previous conviction of breach of condition of stay in 1995 where she was given a suspended sentence and that the Magistrate considered it to be stale and decided not to take it into account in sentencing (paragraph 4 of the Reasons for Sentence). Also, the Magistrate accepted that the Appellant was at stage 3 of cervical cancer which was put forward as part of her mitigation (paragraph 22 of the Reasons for Sentence).

47.After careful consideration, I am of the view that, if by proper application of the totality principle and taking into account all the circumstances of the case and those of the Appellant, the final total sentence of 36 months’ imprisonment after plea (with a notional starting point of 54 months) under the eight charges is manifestly excessive.

48.Ground 2 should therefore succeed. As Ground 2 to some extend overlaps with Ground 3 (complaint about lack of meaningful discount after guilty pleas) and in view of my decision on Ground 2, I do not consider it necessary to further deal with Ground 3.

49.For the above reasons, I have decided not to disturb the individual sentences under Charges 1 to 8 and they should remain. I take the view that a total sentence of 30 months’ imprisonment after plea (i.e. a notional starting point of 45 months) should be sufficient to reflect the overall criminality of the Appellant. I therefore order that 3 months each of the sentences under Charges 2, 6 to 8 totalling 12 months should run consecutively to the 15 months of Charge 1. I also order that 1 month each of the sentences under Charges 3 to 5 totalling 3 months should run consecutively to the 15 months of Charge 1. The final sentence for all eight charges should therefore be 30 months’ imprisonment.

50.The appeal against sentence is allowed to that extend with a final total sentence of 30 months’ imprisonment substituted.

Mr CHAK Tsz On James, SPP of the Department of Justice, for the Respondent

Ms HUI Shuk Yee Cherry, DLA and Mr CHONG Benjamin K.C. , instructed by A Lee & Partners, for the Appellant