Chong Shue Weng Derek and Another v. HKSAR

FAMC No. 42 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 42 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 235 OF 2009)

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Between:

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1.The marriage concerned was a marriage in the eyes of the law. That was so even though the woman was paid to enter into it, even though no affection was involved and even though the parties had not the slightest intention of living together or behaving in any way like a married couple. Although the marriage was described in the charge as a “bogus marriage”, what was bogus was the application to the Immigration Department for the purposes of which the marriage was entered into. That application was for a dependent visa for the husband, and it was made on the false representation that his reason for wanting to come to Hong Kong was to be re‑united with the wife. As all the persons charged knew throughout, he was not dependent on her and there was no question of his being re-united or united with her. The marriage, that application and that false representation were the objects and consequences of the conspiracy charged.

2.As to the points which the applicants wish to raise in an appeal to the Court of Final Appeal, all that has to be said is this.  First, that the marriage was inappropriately described in the charge as a “bogus marriage” is irrelevant to whether the trial was fair and the conviction is soundly based.  Secondly, homosexuality has nothing to do with the legal issues involved in the charge which was brought.  The legal position would be exactly the same if the conspiracy had flowed from, for example, a heterosexual relationship between the 1st applicant and a woman who was not free to marry rather than from, as it happens, a homosexual relationship between the two applicants who wanted permission for the 1st applicant to settle in Hong Kong so that they may cohabit here.  While one can sympathise with the applicants in their particular plight, it cannot be denied that a situation like theirs is but one of many in which persons find immigration laws standing in the way of what they wish.  Thirdly, there is nothing in the argument that there was some gap in the evidence about the Immigration Department’s relevant duty.  Plainly that duty was to grant meritorious applications and reject unmeritorious ones.  Meritorious applications are of course ones that succeed upon the truth, not upon lies.  As counsel for the applicants accepts and indeed avers, a prosecution could have been, in circumstances like these, brought for a conspiracy to commit the offence of making false statements contrary to s.42 of the Immigration Ordinance, Cap.115.  But that does not mean that a conspiracy to defraud cannot be charged in circumstances like these.

3.Everything that can be put forward on behalf of the applicants has been urged with persistence and skill, but neither on the “point of law” limb of s.32(2) of the Court’s statute nor on the “substantial and grave injustice” limb of that subsection is there any basis for leave to appeal to the Court of Final Appeal.  Such leave is therefore refused.

Mr Philip John Dykes SC and Mr Timothy Parker (instructed by Messrs S.H. Leung & Co.) for the applicants

Mr Robert SK Lee SC and Ms Irene Fan (of the Department of Justice) for the respondent