HKSAR v. Chui Man Yi

HCMA342/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 342 OF 2007

(ON APPEAL FROM STCC 336 OF 2007)

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 22 May 2007

Date of Judgment : 22 May 2007

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J U D G M E N T

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1.This is an appeal by the appellant against sentences totalling 18 months’ imprisonment imposed upon her by Mr Dufton on 9 March 2007 at Shatin Magistrates’ Court following her pleas of guilty to one charge of conspiracy to defraud (Charge 5) and one charge of signing a false declaration for the purpose of procuring a marriage (Charge 6). 

2.On each charge the magistrate adopted a starting point of 18 months’ imprisonment, which is discounted by one third to reflect the appellant’s pleas of guilty.  He ordered 6 months of the sentence on the charge of signing a false declaration to run consecutively to the sentence on the charge of conspiracy to defraud, arriving at a total sentence of 18 months’ imprisonment. 

3.The appellant was a young woman of 25 years of age with no previous conviction but a history of drug abuse.  She is a Hong Kong resident. 

4.In November 2004, she agreed with a middleman to travel to the Mainland and enter into a bogus marriage with somebody she had never met before in return for a reward of $10,000.  That man transpired to be her co-defendant.  The purpose was to facilitate her co-defendant applying for a permit to enter Hong Kong and settle here.  This incident is the subject of the conspiracy charge. 

5.The charge of signing a false declaration for the purpose of facilitating a marriage arises from an incident in January 2006 when she went through a second bogus marriage in Hong Kong in return for a reward of $1,000 and two mobile phones.  When filing a Notice of Marriage the appellant falsely stated that she was a spinster.  The purpose of registering the marriage was to facilitate the male party obtaining a Mainland exit endorsement permitting him to visit Hong Kong and ultimately a one-way permit.  The appellant subsequently accompanied him to the mainland for that purpose. 

6.In mitigation the court was told that she committed the first offence because she was owed money and committed the second offence because she needed money for drugs.  

7.In passing sentence the magistrate took into account the appellant’s plea of guilty, her clear record and the circumstances in which she had committed the offences, in particular that she needed money to feed her drug addition. 

8.He stated that a significant number of cases involving bogus marriages had recently come before the courts in Shatin almost on a daily basis.  The object as in this case was to enable someone to settle in Hong Kong who would not otherwise be entitled to do so. 

9.In her notice of appeal the appellant says that the sentence was too severe. 

10.Today, she has told me that she is very remorseful and she wants to come out of prison as soon as possible in order to look after her mother who has diabetes.  Her mother has written a letter to the court asking for a reduction in her daughter’s sentence.  She says her daughter is now remorseful and she says that from now on she will devote her life to supervising her daughter. 

11.Offences of this kind are very serious.  They are dishonest attempts to undermine this community’s effort to control immigration—a matter of very great importance to Hong Kong.  Courts are bound to impose sentences which will deter others who are contemplating the same kind of offence. 

12.Having taken instructions, Miss Chan for the respondent has confirmed that this sort of case is coming before Shatin Magistrates’ Court frequently and that the normal sentence imposed by the Court is 12 months’ imprisonment after plea. 

13.I am satisfied that there are analogies between these offences and offences of using a false travel document and making false representations to an Immigration Assistant where sentences of 18 months’ imprisonment after plea have been upheld. 

14.In this case the magistrate simply took 18 months’ imprisonment as a starting point rather than the appropriate sentence after plea and discounted the sentences by one third to reflect the appellant’s plea. 

15.I have careful considered what has been said to me by the appellant and the letter from her mother but I have concluded that there was nothing improper in the sentences imposed by the magistrate.  These were serious offences which the magistrate was aware were becoming prevalent.  It was proper for part of the sentence on the 6^th charge to run consecutively to the sentence on the 5^th charge.  These were separate offences committed on different occasions.  I consider that the magistrate was justified in concluding that a sentence of treatment in a Drug Addition Treatment Centre was inappropriate for offences of this gravity. 

16.I dismiss the appeal.  

Ms Agnes Chan, SGC of Department of Justice, for the Respondent

Appellant in person, present