R. v. Ching Wai Fan, Carina

CAAR000010/1994

IN THE COURT OF APPEAL

1994, No. 10
Application for Review

_____________

_____________

Coram: Hon Macdougall, V.-P., Penlington, J.A. and Yam, J.

Date of hearing: 15 March 1995

Date of judgment: 15 March 1995

Date of handing down of reasons: 31 March 1995

______________________________________

J U D G M E N T  O F  T H E  C O U R T

______________________________________

Macdougall, V.-P.:

1. This is an application by the Attorney General, with leave granted by the Chief Justice on 24 November 1994, to apply to this court for a review of the sentences passed on the respondent on 2 November 1994 by His Honour Judge Hawles in the District Court.

2. The respondent had pleaded guilty to five charges of conspiracy to defraud contrary to common law and was ordered to serve concurrent sentences of 12 months' imprisonment for each offence.

3. The conspiracies were alleged to have ranged over a period of almost two years from mid-September 1990 to late August 1992.

4. Apart from the names of the applicant's co-defendants and co-conspirators and the period over which the conspiracy occurred, the particulars of each offence were the same. The following particulars of the first of the charges to which the respondent pleaded guilty are representative of those relating to each charge.

"CHING Wai-fan, Carina and LUK Kin-hing, Peter, on divers days between early April 1992 and late August 1992, in Hong Kong, conspired together with Naungayan Remedios G. and other persons unknown to defraud the Hong Kong Government by dishonestly :-

(i)	preparing and/or obtaining false and/or forged contract of employment, and false and/or forged supporting documents with the intention that they be furnished to the Labour Department of the Hong Kong Government for attestation of the employment contract;
(ii)	preparing and/or obtaining false and/or forged contract of employment, and false and/or forged supporting documents with the intention that they be furnished to the Immigration Department of the Hong Kong Government in support of applications for the granting of employment visa extension of stay and re-entry visa."

5. In his Reasons for Sentence the judge correctly stated that the conspiracies involved the use of false or forged contracts of employment and other documents which were to be furnished to the Labour Department or the Immigration Department in support of applications for domestic helpers from the Philippines for employment visas, extensions of stay and re-entry visas.

6. The respondent's criminal conduct came to light when the suspicions of Immigration officers were aroused over letters purporting to have been written by the sales director of a certain company and relating to the financial status of proposed employers of Filipina domestic helpers. Investigation revealed that these letters were forgeries.

7. Initially, the respondent had been assisting a friend, one Thomas Chung, in a scheme to arrange bogus contracts for Filipina domestic helpers.

8. Chung had been running a travel agency whose business included processing both genuine and bogus domestic helper contracts. Chung's wife, who is a citizen of the Philippines, was responsible for contacting potential domestic helpers in the Philippines and Hong Kong. If a genuine employer could not be found for a domestic helper, a bogus employer was created. Each domestic helper was charged between $10,000 and $15,000 for this service.

9. The respondent assisted in this operation and was paid $3,000 by Chung for each employment visa that was approved by the Immigration Department.

10. In April 1992, when Chung and his wife left Hong Kong, the respondent carried on the business on her own behalf. She charged $8,000 for her services in effecting one bogus employment arrangement.

11. The first charge to which the respondent pleaded guilty related to her activity when she was operating the business on her own. The other charges related to her activity when the business was operated by Chung.

12. The judge observed:

"This type of offence has to be regarded as being serious. I have considered a number of cases dealing with sentence in such cases and it would seem clear that the normal sentence is one of imprisonment. In fact, in the case of the R. v. Durup, Criminal Appeal No. 194 of 1986 (unreported), a sentence of three years imprisonment was said to be appropriate for a serious case of a similar nature." and

"It is clear from the admitted facts that [the respondent] was a major player in each of the offences she has pleaded guilty to. Not only that, she did receive financial benefits as a result of her activities." and later,

"Dealing with the 1st accused, as I have indicated earlier, her role in the offences she has pleaded guilty to was major and she has also received financial benefits. In my view, bearing in mind the totality principle, the overall starting point for sentence should be 2 years imprisonment at least. However, taking into account the facts of this case, her pleas of guilty, her co-operation with the authorities, her previous good character and submissions made by Mr Hoosen, the accused is convicted on the 2nd, 4th, 5th, 9th and 10th charges and is sentenced to 1 year imprisonment on each charge, to be concurrent."

13. Mr Cross, who appeared for the Attorney General at the hearing of this application, submitted that the sentences were manifestly inadequate and wrong in principle. He contended that in the light of the judgment of this court in Durup, the judge erred in taking a starting point of "two years' imprisonment at least": In delivering the judgment of the Court Power J, as he then was, said:

"Any person residing in Hong Kong knows full well the seriousness of remaining illegally in the Colony. No one could be unaware that such offences are serious ones. The continuing and grave difficulties posed to the authorities by the entry and remaining of illegal immigrants do not need to be outlined by us. They are known by all who have any knowledge of conditions in Hong Kong. The courts must take a serious view of such offences."

14. This court also expressed the view that for a course of activity similar to that pursued by the respondent but which extended over a period of a little over 13 months, a proper starting point for sentence would have been 3 years and that a suspended sentence was inappropriate.

15. In the present case the offences were distinct and separate, albeit part of an on going course of criminal conduct.

16. Mr Cross referred to what was said by this court in R. v. Tong Hoi-fung [1988]1 HKLR 610 at 611:

"This Court has said time and time again that where there is more than one offence of a similar nature committed at different times it is right for the court to award a higher sentence than if there had been only offence."

17. Notwithstanding the period of time over which the conspiracies to which the respondent pleaded guilty ranged, the bogus contracts related to no more than five Filipina workers of which four were concerned with the period when Chung was operating the agency.

18. In R. v. Mak Chun-hin Criminal Appeal 458 of 1992 (unreported), which was a case relating to a conspiracy in the course of which forged contracts of employment were created to support the grant of employment visas to prospective employees and which involved millions of dollars, another division of this court expressed the view that a sentence in the region of one years' imprisonment would have been appropriate.

19. While we consider that that was somewhat a benevolent view and that the level of sentence for this type of offence has hitherto been unduly low, we are not prepared to say that in such a sentencing climate the judge was wrong to have passed the sentences which he did. However, those who commit this type of offence in the future can expect to be dealt with more severely than this respondent and the defendants in Durup, Mak and other cases.

20. In the present case there were no less than ten conspiracy charges on the charge sheet, but the Crown was prepared to accept pleas of guilty to five of those charges. If the effect of plea bargaining is to reduce the scope of a defendant's criminal activity, the Crown must expect the courts to pass sentences in accordance with the criminality disclosed in the charges to which pleas of guilty are accepted and nothing more.

21. For the reasons we have given we refused the application.

Representation:

Mr I.G. Cross Q.C. & Miss M. Crabtree for Crown Prosecutor

Miss Sze Kin (DLA) for respondent