HKSAR v. He Wenyou

[English Translation - 英譯本]
CACC 235/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 235 OF 2008

(ON APPEAL FROM DCCC NO. 28 OF 2008)

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BETWEEN

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Before: Hon Cheung JA and Yuen JA in Court

Date of Hearing: 10 February 2009

Date of Judgment: 10 February 2009

Date of Reasons for Judgment: 18 February 2009

REASONS FOR JUDGMENT

Hon Cheung JA (giving the reasons for judgment of the Court):

Leave to appeal against sentence

1.The applicant was charged with two offences. The first charge (i.e. Charge 1 in the charge sheet) was making a false representation to an immigration assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong).  The second charge (i.e. Charge 5 in the charge sheet) was conspiracy to obtain services by deception, contrary to section 18A(1) of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong) and sections 159A and 159C of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong).

2.The applicant denied all the charges.  The case was heard before Deputy District Judge Douglas Yau. After the prosecution adduced evidence, the applicant admitted the first charge, and when the Judge held that he had a case to answer in respect of the second charge, he also pleaded guilty to that charge.

3.The Judge adopted 3 years’ imprisonment as the starting point for the first charge and, as the applicant did not plead guilty at the commencement of the trial, reduced the term by approximately 16% — instead of the usual one third — to 2 years and 6 months.  For the second charge, the Judge also adopted 3 years’ imprisonment as the starting point and, again giving a discount of approximately 16%, reduced the term to 2 years and 6 months.  The two terms were ordered to run concurrently. The applicant applies for leave to appeal against sentence.

Particulars of charges

4.The particulars of the first charge were that the applicant, “on the 12^th day of November 2007 and in Hong Kong, made to an Immigration Assistant lawfully acting under or in the execution of Part II (Departure Examination) of the Immigration Ordinance, a representation which [the applicant] knew to be false or did not believe to be true, namely he was leaving Hong Kong for Thailand”.

5.The particulars of the second charge were that the applicant and the 3^rd defendant herein, “on or about the 12^th day of November 2007 and in Hong Kong, conspired to dishonestly obtain services from Cathay Pacific Airways, namely allowing the applicant to board Flight CX 293 from Hong Kong to Rome on the strength of a boarding pass relating to that Flight and belonging to Chan Kwok Keung, by deception, namely by falsely representing that the applicant was the said Chan Kwok Keung”.

Facts

6.The applicant was a resident of Mainland China.  He entered Hong Kong on 12 November 2007 via Lok Ma Chau.  On the same day, at the check-in counter of Cathay Pacific Airways (“Cathay”) at Kowloon Station of the Airport Express Line, he produced a PRC passport and checked in for a flight bound for Bangkok, Thailand.  The staff members of Cathay issued to the applicant a boarding pass for the flight to Bangkok.  On the same day, the applicant went through departure examination procedures at the Hong Kong International Airport for going to Bangkok.  Subsequently the applicant, holding a boarding pass and a PRC passport, queued up at the boarding gate for a flight bound for Rome, Italy.  A security officer of Cathay requested the applicant to produce his boarding pass and passport.  It was then discovered that the name on the boarding pass was different from that on his passport.  At the same time, immigration officers intercepted the 3^rd defendant nearby and questioned him.  He later admitted to the immigration officers that he was instructed by someone called “Xiao Gao” to take the applicant and another passenger to Rome and that, upon arrival at the airport at Rome, he would give the applicant a passport for him to go through the entry formalities.  The name of the holder of that passport was with the same as the name on the boarding pass held by the applicant for going to Rome.  The 3^rd defendant said that the boarding pass and passport in question were given to him by “Xiao Gao” and that he would go to Rome with the applicant on that flight.

Ground of appeal

7.The ground of appeal relied on by the applicant is that the sentences for both offences are manifestly excessive.

Authorities

8.The Court of First Instance adopted 12 months’ imprisonment as the starting point in two magistracy appeal cases concerning section 42(1)(a) of the Immigration Ordinance, namely HKSAR v. Wang Wu (HCMA 801/2003) and HKSAR v. Zhang Chang Yong (張長勇) (HCMA 1256/2003).  In our view, however, these sentences are manifestly inadequate.

9.We must point out that a higher starting point is applicable to this kind of cases, which clearly involve sophisticated planning and arrangement.  Making use of Hong Kong’s position as a hub of communications, offenders assist illegal immigrants in entering a third country.  By means of a fraudulent scheme, offenders help illegal immigrants enter the restricted area of the Hong Kong International Airport, where they then use false boarding passes to board flights bound for a third country.  Upon arrival in that country, they will use false identity documents for gaining entry into that country.  These activities will obviously tarnish Hong Kong’s international reputation.  Furthermore, as a result of those activities, immigration authorities of foreign countries will become wary of visitors from Hong Kong even when they are holding lawful travel documents, which means that visitors from Hong Kong will have to suffer a certain degree of inconvenience when they enter those countries.  Severe, deterrent sentences must therefore be imposed for those offences.

10.This position is reinforced by the sentence imposed by the Court of Appeal in a case with facts similar to those of the present case.  In HKSAR v. Cheng Kwong Chung (D2), Wong Lai Ming (D4) and Lu Qiufeng (D7) (CACC 536/2001), D7 faced three charges, two of which being the same as the two charges in the present case and the remaining one being “possession of a false passport”.  The judgment of the Court of Appeal said that D7 pleaded guilty to making a false representation to an immigration officer, but according to the Reasons for Conviction and Sentence prepared by the trial judge, D7 in fact pleaded not guilty to all three charges. Miss Yam, Senior Public Prosecutor for the respondent, has also agreed that according to the record of the Department of Justice, D7 denied all three charges at trial and did not plead guilty to any one of them.  She was sentenced to 32 months’ imprisonment for each of the two conspiracy offences and 27 months’ imprisonment for the offence of making a false representation, and the three sentences were ordered to run concurrently.  The Court of Appeal affirmed the sentences and dismissed D7’s application for leave to appeal against sentence.

11.Furthermore, in HKSAR v. Hung Kong Nam（洪江南）and Cheng Yung（鄭勇）(CACC 346/2006), the two defendants faced the following three charges:

(1) Aiding and abetting the making of a false representation to an immigration officer, contrary to section 42(1)(a) of the Immigration Ordinance;

(2) Conspiracy to defraud an airline company; and

(3) Aiding and abetting the possession of a forged identity card and false credit cards.

Both defendants were sentenced to 12 months’ imprisonment for “aiding and abetting the contravention of the Immigration Ordinance” and were sentenced to 3 years’ imprisonment and 3½ years’ imprisonment respectively for “conspiracy to defraud an airline company”.  All sentences were ordered to run concurrently.  The Court of Appeal dismissed the appeal against sentence, observing that the sentences imposed by the trial judge for the offences concerning the Immigration Ordinance were manifestly inadequate and should have been brought closer to those imposed for “conspiracy to defraud an airline company”.

12.The facts of the aforesaid case and those of the present case are by and large the same: Mainlanders came to Hong Kong and obtained air tickets to go to countries which they could lawfully enter, but, having gone through the departure formalities in Hong Kong, they were given boarding passes or travel documents bearing names of other persons to go to countries which they had no right to enter.  In Cheng Kwong Chung, D7 was an illegal immigrant; in Hung Kong Nam and Cheng Yung, the two defendants were people who assisted illegal immigrants to enter a third country.

The role of the applicant

13.Mr. Chong, Counsel for the applicant, submits that the applicant merely participated in, as opposed to plotted or carried out, this illegal operation, and that it was the 3^rd defendant who plotted or carried out the operation.

14.Miss Yam for the respondent argues that although the applicant and the 3^rd defendant played different roles, there were equally culpable for making a false representation to an immigration officer.  The applicant was one of those who initiated this scheme.  Had he not desired to go overseas to work, no one would have made the corresponding arrangements; the 3^rd defendant was merely one of those who carried out this scheme, which needed the applicant’s concerted action in order to achieve its purpose.  Miss Yam contends that as far as deceiving the immigration officer was concerned, the applicant was in fact the principal offender and the 3^rd defendant was an accomplice, and therefore the two of them should in principle be equally culpable and receive the same sentence.

15.In our judgment, although the applicant took part in this illegal immigration scheme, there should be some difference between the culpability of those who plotted or carried out the scheme and that of the illegal immigrants who took part in the scheme.  What usually happens is that someone plots a scheme, and then solicits those who want to be smuggled to a foreign country to join the scheme, and then assists them to illegally enter that country.  As the illegal immigrants only do what the mastermind instructs them to do, we consider that the mastermind or those who carry out the scheme should be more culpable.  Such a difference has in fact been demonstrated in the aforesaid two Court of Appeal cases.  In Cheng Kwong Chung, D7 was an illegal immigrant, whereas D2 and D4 were those who carried out the illegal immigration scheme and assisted D7 therein.  The trial judge adopted 3 years' imprisonment as the starting point for these two defendants’ conspiracy charges.  In Hung Kong Nam, the defendants were both responsible for carrying out the illegal operation, and the trial judge adopted 3 years’ imprisonment and 3½ years’ imprisonment as the respective starting points for their conspiracy charges.

16.The applicant in the present case was merely an illegal immigrant.  In light of the principle that sentences arising from similar factual matrices should be as consistent as possible, the sentence imposed in the present case should in our view be the same as those passed in Cheng Kwong Chung.  The Judge adopted the same starting point for the 3^rd defendant and the applicant.  At trial, the Judge’s attention had never been drawn to Cheng Kwong Chung. We believe that had the Judge been made aware of that case, he would have directed his mind to the disparities in sentencing.

Conclusion

17.For the above reasons, the applicant's application for leave to appeal against sentence is allowed and is treated as the appeal proper.  We adopt 27 months as the starting point for the first charge and reduce it by 16% discount to 23 months on account of the guilty plea.  The starting point for the second charge is 32 months and this is reduced by 16% to 27 months on account of the guilty plea. The two terms shall run concurrently and the total sentence is 27 months' imprisonment.

Miss Sally Yam, Senior Public Prosecutor, for the Respondent.

Mr. Chong Tin-chun, instructed by Tang, Wong & Chow, for the Applicant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.