HKSAR v. Ho Bing Kee

CACC000009X/2000

CACC9/2000

Sentencing in respect of offences under s.42(1)(c) and (2)(c)(i) of the Immigration Ordinance Cap.115.

[English Translation-英譯本]

CACC9/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 9 OF 2000

(ON APPEAL FROM DCCC 945 OF 1999)

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Coram: Hon. Wong and Woo, JJ.A. in Court

Date of Hearing: 11 April 2000

Date of Judgment: 11 April 2000

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JUDGMENT

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Hon. Mr Justice Woo, JA (delivering the judgment of the court):

1. The applicant for leave to appeal, Ho Bing-kee, was convicted of 9 charges after trial by Deputy District Court Judge M Tong on 20 December 1999 and was sentenced to 3 1/2 years' imprisonment. On 4 January 2000 the applicant applied for leave to appeal against sentence and on 29 February 2000 for leave to appeal against conviction out of time.

2. At the trial the applicant was the 1st defendant, the other person Wong Chi-kong, 71 years of age, was the 2nd defendant. The applicant was charged with nine charges, ie, the 1st to 4th and the 7th to 11th charges, while Wong Chi-kong was charged with two charges, the 5th and 6th charges. Wong Chi-kong turned prosecution witness after admitting the 5th charge.

3. The 1st to 4th and the 7th charges stated that the applicant made false representations for the purpose of obtaining an entry permit, contrary to s. 42(1)(c) of the Immigration Ordinance Cap. 115. Those five charges stated that the 1st defendant, on respectively 1 October, 11 October, 5 December, 13 December of 1996 and 29 January 1997 made representations, knowing the same to be false or not believing the same to be true for the purpose of obtaining a Hong Kong Entry Permit Audit No. 071044 in that, in the application for the said entry permit, he falsely represented that he was applying for the said Hong Kong Entry Permit on behalf of Wong Chi-yin (who in fact was Leung King-wah). The 8th charge stated that the applicant, on 24 April 1997, had in his possession of the said unlawfully obtained Hong Kong Entry Permit. The 9th and 10th charges stated that the applicant, on respectively 16 February 1998 and 8 July 1998, aided, abetted, counselled or procured Leung King-wah to make a representation which he (the applicant) knew to be false or did not believe to be true, for the purpose of obtaining six Hong Kong Entry Permits Audit Nos. E005652 to E005657 ie, that the said Leung King-wah was Wong Chi-yin and that the said Leung King-wah was applying for the said entry permits on behalf of Wong Chi-yin's six children, namely, Wong Man-lan, Wong Kwun-kin, Wong Kwun-yin, Wong Man-yee, Wong Man-ping and Wong Kwun-keung. The 11th charge stated that the applicant, on 8 July 1998, had in his possession the said six unlawfully obtained Hong Kong Entry Permits. The aiding and abetting offences stated above were contrary to s.89 of the Criminal Procedure Ordinance Cap. 221 and s.42(1)(c) of the Immigration Ordinance Cap. 115; the offences of unlawful possession were contrary to s.42(2)(c)(i) of Cap. 115.

4. The 5th charge which Wong Chi-kong admitted was also aiding and abetting the making of a false representation for the purpose of obtaining an entry permit in that Wong Chi-kong, on 13 December 1996, in Hong Kong, aided and abetted Ho Bing-kee (the applicant) to make a representation, which he knew to be false or did not believe to be true for the purpose of obtaining Hong Kong Entry Permit Audit No. 070144, in that he aided and abetted the said Ho Bing-kee to represent that he was applying for the said Hong Kong Entry Permit on behalf of Wong Chi-yin ( who in fact was Leung King-wah ).

5. At the outset of the trial, the Prosecution and the Defence were able to agree extensively regarding the facts of the case and, in accordance with s. 65C of the Criminal Procedure Ordinance, reached agreement on the seizure and handling of a large volume of documentary evidence. The Prosecution only called two witnesses. PW1 was Leung King-wah named in the particulars of the offences. He was a mainlander whose native place was QingYuan, Guangdong. He was a merchant who came to Hong Kong by way of a two way permit to give evidence for the Prosecution and he was under an immunity granted by the Secretary for Justice that he would not be prosecuted for the offences he had committed on which he would give evidence at the trial. PW2 was the 2nd defendant in this case, Wong Chi-kong. After he admitted the 5th charge, he was willing to give evidence for the Prosecution. He was born in Hong Kong but fled from the place with his parents to their ancestral home town PanYu during WWII when the Japanese invaded Hong Kong. In 1949 he returned to Hong Kong and in 1957 settled back in PanYu. On 6 April 1995, he came to Hong Kong holding the Hong Kong Entry Permit obtained by the applicant on his behalf from the Immigration Department. He has two younger brothers and two younger sisters. Wong Chi-yin is one of his younger brothers who was also born in Hong Kong and later brought back to the mainland. Since 1950, Wong Chi Yin had already settled and worked in QinHuangDu of Hebei. Wong Chi-kong had all along kept in contact with Wong Chi-yin and he knew that he had two sons, namely Wong Hiu-ning and Wong Hiu-dong.

6. On 6 April 1995, Wong Chi-kong came to settle in Hong Kong, holding the Hong Kong Entry Permit obtained through the assistance of the applicant. Thereafter, the applicant asked for his help to make an application in his brother's name for a person from QinXinXian to come to Hong Kong. In view of the fact that the applicant had successfully applied on his behalf for him to come to Hong Kong, Wong Chi-kong agreed to his request. Wong Chi-kong wrote down two sets of documents at the applicant's dictations on two separate occasions. The documents were given to the applicant in support of Wong Chi-yin's application for immigration. Wong Chi-kong, of course, was well aware of the fact that his brother Wong Chi-yin had no intention of coming to Hong Kong. Besides, Wong Chi-kong, under the abetment of the applicant, falsely represented to Immigration officers that the applicant for entry, the so- called Wong Chi-yin, was his own brother and made false replies to them as instructed by the applicant.

7. PW1 Leung King-wah, born on 18 November 1950, had 4 children with his wife. The so-called six children of Wong Chi-yin, as referred to in the 9th to 11th charges, were not his children. He said his first meeting with the applicant was inside the flat of a friend, Chu Han-lan. Chu Han-lan addressed the applicant as "Uncle Kee" as she introduced him to PW1. The applicant told the witness that the witness could assume Wong Chi-yin's name by a Hong Kong Birth Certificate in Wong's name so as to apply for himself and his children to come to Hong Kong. Though the witness did not quite believe in what the applicant had said, still he agreed to the plan. The applicant then asked the witness to arrange for some certificates of identity sufficient to prove that he was Wong Chi-yin. During the meeting, the three of them had discussed to let Chu Han-lan and her daughter pretend as Wong Chi-yin's children for their applications for immigration to Hong Kong. Eventually, as PW1's children had no intention of coming to Hong Kong, the applicant arranged four other persons together with Chu Han-lan and her daughter, all assuming to be the children of PW1 who went under Wong Chi-yin's name.

8. PW1 deceived the relavant authorities in the mainland and was issued six sets of birth certificates containing false particulars, all for the use of Chu Han-lan and her daughter as well as the other four mainlanders arranged by the applicant. PW1 also obtained four mainland certificates of identity together with other proofs of identity in Wong Ch-yin's name including a certificate of identity, a marriage certificate, a bicycle card, a certificate of residence and a ration card, all of which he gave to the applicant.

9. Around June 1997, the applicant told PW1 that he had obtained a Hong Kong Entry Permit for him. The applicant asked for HK$300,000 from PW1 as his reward for arranging him to come to Hong Kong. As the witness had no money, he gave the applicant an IOU signed by him dated 19 July 1997, with a title deed as security. Later as the applicant was not satisfied with the arrangements he asked PW1 to sign additionally a promissory note dated 21 July 1997 and also produce a copy of the registration certificate of his car, putting up a Benz 300, registration number Gui K01070 as a security for his debt in the sum of HK$300,000. Subsequently due to the applicant's pressure for money, PW1 paid the applicant RMB￥30,000 in Guangzhou, the receipt of which was acknowledged in writing signed by the applicant. The documents mentioned above were exhibits produced with the agreement of the Prosecution and the Defence. After obtaining the Hong Kong Entry Permit from the applicant, PW1 then came to Hong Kong on 23 July 1997. Following his application for a Hong Kong ID card and Re-entry Permit, he returned to the mainland. During his stay in Hong Kong, he saw the applicant once to twice, mainly for plotting the arrival of the 6 children who passed off as Wong Chi-yin's children under the assumed names as stated in the 9th and 10th charges.

10. In his Reasons for Verdict, the trial judge gave a detailed description and evaluation of the evidence mentioned above, reminding himself of the following regarding the witnesses and the following evidence:

(1) The applicant had chosen not to give evidence. However, as he was a person with no conviction record, the judge reminded himself to consider carefully that he was less likely to commit the offence;

(2) Although the applicant chose not to give evidence, the judge would not draw any unfavourable inference against him; and

(3) PW1 Leung King-wah and PW2 Wong Chi-kong were accomplices in this case, as alleged in the charges, such that they might try to shirk the responsibility for the crimes onto the applicant to their benefit. Accordingly the judge reminded himself to handle the evidence of the accomplices with extra care and to look for corroborative evidence in order to determine the weight of the testimonies of the two witnesses.

11. The judge had also considered carefully the evidence of PW1 and PW2. There were some discrepancies regarding dates and what kind of documents they had read. However the judge considered that these discrepancies were of secondary importance and on minor issues, and that the evidence in these areas was less accurate due to a lapse of two to three years between the time of the incident and the time of the trial. It was not surprising at all that there were discrepancies in these peripheral matters; on the contrary, it rather underlined that the witnesses did not have any intention to fabricate against the applicant.

12. The judge also carried out evaluation on the two loan bills in the sum of HK$300,000 signed by PW1. Those bills did not account for how the loan was made at all and there was not any record of any cheque with which the applicant had passed the money to PW1. Or, if the loan in the sum of HK$300,000 had been passed to PW1 in the form of cash, there was no acknowledgement of receipt whatsoever of the said sum by PW1. Therefore the judge did not accept the suggestion of the counsel for the applicant that the applicant had lent HK$300,000 to PW1. The judge found that the reason why PW1 was willing to sign the loan bills with his landed property and car as security was only for the exchange of the entry permit in Wong Chi-yin's name. All these strongly corroborated the evidence of PW1. Besides, the judge also dealt with the applicant's defence that he believed PW1 to be Wong Chi-yin, Wong Chi-kong's blood brother. However, when PW1 and Wong Chi-kong's evidence was viewed as a whole, they all pointed to the fact that the applicant knew perfectly well that Wong Chi-yin, on whose behalf he was making the application, was only the name of Wong Chi-kong's younger brother. PW1 Leung King-wah was a QingYuan native. He was not in any way related to Wong Chi-kong and his brother Wong Chi-yin whose native place was PanYu. Moreover the applicant was well aware that Chu Han-lan and her daughter had falsely represented themselves as Wong Chi-yin's children. These pieces of evidence as well as other documentary evidence firmly proved that the applicant had provided information which he knew to be false to the Immigration Department to obtain the entry permit in Wong Chi-yin's name for the use of PW1 Leung King-wah and that he aided and abetted PW1 to deceive the Immigration Department to obtain the Hong Kong Entry Permits for those who assumed themselves to be Wong Chi-yin's children as stated in the 9th to the 11th charges.

13. The evidence in this case is irrefutable and the trial judge has not erred in dealing with and evaluating the various aspects of the evidence; thus there would not be any chance of success for the applicant's appeal against conviction.

14. The applicant stated in this court that the trial judge had erred in that he had not considered the applicant's evidence in relation to this case. Nevertheless this could not be a ground of appeal because at the trial, the applicant had chosen not to give evidence, so the trial judge had no way to consider his evidence.

15. In the applicant's application for leave to appeal against sentence dated 4 January 2000, above the part where he put down his signature was printed the following:

"It has been explained to me in detail that my appeal against sentence could be lodged along with my appeal against conviction. The appeals would be dealt with severally and the determination on each case would not bear any effect on the other."

The applicant wrote on the notice of application for leave to appeal, "I, Ho Bing-kee (P197869), think that the sentence is too severe and therefore wish to apply for appeal to have the sentence reduced." This shows that at that time his application for leave to appeal was only made against sentence. Moreover he clearly knew that the appeal against conviction and the appeal against sentence were different appeals but he only chose to apply for leave to appeal against sentence.

16. In his application for leave to appeal dated 29 February 2000, the applicant affirmed "I, Ho Bing-kee, had applied within the limit of 28 days for leave to appeal to have the sentence reduced. As I was not familiar with the proceedings I thought that the appeal against sentence covered the appeal against conviction. When I was in prison I learned from an officer that appeal against conviction and that against sentence were two different matters. Therefore I ask the authorities concerned to allow the application for leave to appeal out of time against conviction."

17. In the notice of application dated 4 January 2000, the applicant should have understood from its content that the applications for leave to appeal against conviction and that against sentence were two different matters; therefore this court does not believe that the applicant, on signing the first notice of application, did not understand that the application for reduction of sentence did not include the application for leave to appeal against conviction. Further, in the words he had written he only stated that the sentence was too severe that he wished to apply for the sentence to be reduced. This clearly bore no reference to his conviction. Thus, his application for leave to appeal out of time against conviction is without sufficient grounds. Besides, this court has already stated above that the trial judge did make detailed evaluations in respect of various evidence and exhibits in this case, and in so doing he had not made any mistake. Therefore the appeal against conviction would have no chance of success. Accordingly this court refuses the application out of time for leave to appeal against conviction.

18. Regarding sentence, the applicant was sentenced to 3 1/2 years' imprisonment in respect of each charge, all to run concurrently.

19. In his reasons for verdict, the trial judge said as follows:

"The charges with which the 1st defendant was found guilty were very serious charges. The maximum sentence for all charges was 14 years' imprisonment and $150,000 fine. The said charges showed clearly that the 1st defendant plotted and organised the offences which he committed with a view to make Hong Kong Immigration Department believe that PW1 and his six assumed children were legal Hong Kong residents so that seven entry permits would be issued to them enabling them to come to Hong Kong with those documents while the 1st defendant obtained benefits from them, in that he made PW1 sign loan bills in the sum of HK$300,000 and also in fact obtained a sum of RMB￥30,000 from him.

As Hong Kong is a small place with a large population, those who enter Hong Kong by way of illegal means will be sentenced severely. An illegal immigrant who has no previous conviction and admits his guilt in court will still face an immediate imprisonment of 15 months. If this case had not been exposed by the mainland authorities, the 1st defendant would have obtained, by illegal means, the right of abode in Hong Kong for seven mainlanders, enabling them to live and work freely in Hong Kong. The gravity of the circumstances in this case was self-evident.

In my judgment the punishment will not serve as a deterrent if the 1st defendant is not severely sentenced. Therefore I take a total of 4 years as the starting point in this case. As the defendant has no previous convictions, after due consideration to the totality, I make a reduction on his sentence to 3 1/2 years. I now impose on the defendant a sentence of 3 years and 6 months for each charge of which he was convicted. As the charges formed one transaction, I order the term on each charge to run concurrently."

20. This Court considers that the reasons for the sentence mentioned above ample and unassailable and accepts all of them. The maximum sentence for each charge is 14 years' imprisonment. The judge had in fact been very lenient to the applicant by taking a starting point of four years. This Court takes this opportunity to indicate that in this kind of cases - deceiving related authorities in the mainland and the Hong Kong Immigration Department by various illegal and deceptive means with planning and organisation to obtain, by way of deception, Hong Kong Entry Permits for pecuniary benefits - are very serious offences. If our courts are to deal with cases with similar features, the starting point of four years' imprisonment should be viewed as too low.

21. This Court refuses the application for leave to appeal against sentence.

Representation:

Miss Sin Pui-har Sr Asst DPP for HKSAR

Applicant for leave to appeal: in person