HKSAR v. Yim Kim Ping and Others

DCCC936/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 936 OF 2008

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Before:   Deputy District Judge W.C. Li

Date:     23 February 2009 at 12.54 pm

Offence:  Conspiracy to possess false instruments (串謀管有虛假文書)

Reasons for Sentence

1.The 1st defendant is obviously a courier and a willing participant in an international human smuggling ring, obviously syndicated.

2.Numerous authorities were submitted on sentence.  The principle is the same in all these cases.  I am not going to repeat each and every principle regarding the sentence on this type of cases.

3.I notice that there is an upward trend in sentence.  In the case of HKSAR v Ma Yuen Chi CACC537/2005, 5 years was upheld on appeal.  This is understandable because of the prevalence of such offences and the need for deterrence.  Not just the comity between nations, but also that today’s world is not a peaceful one.  It is not just people going into other countries for work that they were smuggled.  There is a growing concern that people with other ulterior motives were being smuggled around.  We are not concerned with those cases.  D2 and D3 in this case are going to Europe for economic reasons, going to work in the quest for more pay and to provide a better livelihood for their families in China. 

4.As I had indicated before, the number of passports found on the courier, that is D1, was neither here nor there when the whole thing is syndicated.  And no doubt if there is a market, if there was a supply of people asking for these false or forged passports, the syndicate will come up and provide them.  In the present case the operation was quite a sophisticated one.  It involved moving D2 and D3 into different countries in Europe and using different sets of passports, namely Malaysian passports to get into Holland and Japanese passports to enter Switzerland.  The more complicated the operation, the higher the cost.

5.D2 and D3 had to pay through their nose, so to speak; they were poor peasants.  They paid something like $170,000 or thereabouts in order to go abroad to work.  I do not have to stretch my imagination to know that D2 and D3 and people in similar plight would have to work probably for at least 2 years in a sweatshop to pay off such debt. 

6.D1, on Charges 1 and 2, I take a start of 4½ years' imprisonment.  The offences were part of a series of transactions, so I am quite happy to make the sentences concurrent.  So, for D1, on Charges 1 and 2, I give him one-third discount for his plea and I therefore sentence him to 3 years' imprisonment on these two charges, the terms to run concurrently.

7.As for the 2nd and 3rd defendant, they are the end-users.  The starter for the offence regarding end-users are much lower, but in no way lenient because a deterrent is necessary.  As I mentioned before, this was not a simple operation, it involved using different passports, entering different countries; it was well-planned, well-organised and carried out.

8.I take a starter of 30 months' imprisonment regarding D2 and D3 on the respective charge they are facing.  One-third off for their pleas.  There are no other mitigating factors.  I therefore sentence D2 on Charge 1 to 20 months' imprisonment and D3 on Charge 2 to 20 months' imprisonment as well.