HKSAR v. Wei Bixiao

HCMA 507/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 507 OF 2009

(ON APPEAL FROM STCC 1526/2009)

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BETWEEN

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Before: Deputy High Court Judge Mackintosh in Court

Date of Hearing: 12 August 2009

Date of Judgment: 12 August 2009

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J U D G M E N T

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1.The appellant was convicted after trial by Mr TH Casewell, at Shatin Magistracy, of two offences: Charge 1, making a false representation to an immigration assistant, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115; and Charge 2, conspiracy to defraud, contrary to common law. She was sentenced to 12 months’ imprisonment and 18 months’ imprisonment respectively, the sentences to run concurrently. She has lodged an appeal against her sentence only.

2.The facts established in the trial, at which she was represented by counsel, were that in 2007, the appellant, a resident of the Mainland, met a Hong Kong resident called Ma Siu-on in Shenzhen. They hatched a plan whereby in return for her paying him RMB10,000, they would enter into a marriage in Hong Kong. As the appellant herself admitted in interview, this was a bogus marriage in that it was entered into, not so that the parties could live together as man and wife, but for the sole purpose of facilitating her entry to Hong Kong from the Mainland on the false claim that she was visiting her husband. She was instructed by Ma with sufficient details of himself and his family to give credence to her claims to be visiting him if she was asked. In pursuance of this plan, in September 2007, the marriage was solemnised in Hong Kong and she paid Ma his fee.

3.Thereafter, as she admitted, she successfully applied on a number of occasions for a Tanquin endorsement to her exit permit from the Mainland, issued for the purpose of visiting family in Hong Kong, namely Ma Siu-on, and used by the immigration authorities in Hong Kong as a ground for permitting her entry. On none of these visits did the appellant actually visit Ma, indeed, she never saw him again after the marriage. She was issued with 90-day permits to stay and her objective, she said in interview, was to work in Hong Kong. This agreement with Ma was represented by the conspiracy to defraud charge.

4.On 28 December 2008, the appellant arrived in Hong Kong and falsely represented to an immigration officer that she was coming to visit her husband, Ma. She was given a further 90-day permit to land. This is represented in Charge 1. She was later arrested whilst hawking goods in the street and the offences came to light.

5.The appellant is a woman of 42 years of age, divorced in the Mainland, with adult children. She had no previous convictions in Hong Kong.

6.The magistrate, sitting in a magistracy which deals with the majority of immigration cases coming before the courts, remarked in his reasons for sentence that these offences are commonplace, and that he imposed the usual terms in respect of each offence, making the sentences concurrent because he regarded charge 1, the false representation, as being illustrative of the execution of the earlier conspiracy to defraud, charge 2; and although he could, he said, have ordered a partially consecutive term, he regarded the total sentence of 18 months as being an adequate reflection of the overall criminality.

7.Today, the appellant maintains her innocence of the charges and has given an account of what she says was improper behaviour by the immigration officer dealing with her case. She asserts that the marriage was not bogus and that Ma Siu-on has been in court today. However, she confirms that she has only appealed against the sentences imposed upon her and that she seeks a reduction in those sentences, partly because of what she feels was unfair treatment of her by the immigration department and partly because of what she says is her poor health. She argues that the overall sentence imposed upon her was too long and she asks the court to exercise an element of leniency.

8.I am satisfied that the overall term of 18 months is entirely consistent with the established approach to bogus marriage cases. A number of examples of previous appeals have been cited to me by the respondent to demonstrate this. They include: Lui Kon-fai HCMA 1029/1998, Chen Wu-cheng HCMA 251/2007, Lui Qiangqing HCMA 103/2007, where an overall term of 21 months was upheld for what were said to be “prevalent”, “wholly dishonest” and “hard to detect” offences. Chui Man-yi HCMA 342/2007 is another similar example.

9.On the issue of prevalence of bogus marriages being used to circumvent immigration restrictions, the respondent points out that Immigration Department figures show a total of 240 convictions in 2007, 259 in 2008 and 81 up to May 2009. This is in line with the magistrate’s comment about this being a commonplace offence.

10.Accordingly, there is no basis for concluding that the sentences imposed upon the appellant were excessive or in any way wrong in principle. The appellant must understand that because she exercised her right to plead not guilty and was convicted after trial, there was no basis for the magistrate to award her the usual one-third discount on sentence given to those who plead guilty. The appeal against sentence must be dismissed.

Mr Franco Kuan, SPP (Ag.), for the Director of Public Prosecutions, for the Respondent

Appellant in person