HKSAR v. Cheng Ho Yin

DCCC 252/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 252 OF 2011

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to possession of false instruments, contrary to section 75(1) of the Crimes Ordinance, Cap. 200.  He was a Hong Kong resident. Upon his arrival at Lok Ma Chau Control Point from Mainland China, he was found to have 4 forged HKSAR passports (P1 – P4) in the inner pocket of his jacket. 

2.P1 – P4 bore the following features:

(a) P1 and P2 bore his own photos but not his personal particulars;

(b) P3 and P4 bore the photos of a person known to him as “Ah-Kar” but not Ah-Kar’s personal particulars.

3.When interviewed under caution, he said as follows:

(a) He knew the 4 passports were forged;

(b) “Ah-Kar” had introduced a person called “Kee-kor” to him;

(c) He gave his photos to Kee-kor to forge passports;

(d) Ah-Kar told him the forged passports would be used with counterfeit credit cards for shopping in Europe;

(e) Kee-kor gave him the 4 passports later in Shenzhen;

(f) He was to bring them back to Kee-kor in Hong Kong;

(g) He was arrested at Lok Ma Chau Control Point.

Personal background and mitigation put forward

4.He was 20 at the time of the offence.  He is 21 now.  Both his parents are full time workers.  Whilst studying F. 4, he lost interest in schooling to work in hair salons.  At the time of arrest he was working for Mode J’ Hair Design.  According to his employer’s mitigating letter, he was diligent and responsible.  He contributes regularly to the family outlay.  His relatives also commend his good character.  His solicitor tells me he had spent beyond his means on merriment with peers.  He committed the present offence to repay debts. 

5.Although the Background Report referred to his participation in voluntary hair cut service for the elderly during weekends, there is nothing other than a letter from St. James’ Settlement, which certified such service rendered for only 2 days between 2010 and 2011.  I have expressly asked for proof of further dates but there is none.  

Examples of sentences

6.There are no sentencing guidelines.  The following cases bore some common facts for comparison:

(a) In R v Jiang Shou Fa CACC 380/1996, the applicant pleaded guilty to possession of 16 forged passports of different countries at his residence and conspiracy to possess 11 forged passports, with forged visas ready to be affixed thereupon, of different countries in his briefcase. The Court of Appeal stated the international element and the substantial scale would warrant an overall sentence of 6 years after trial.

(b) In HKSAR v MA Yuen-chi CACC 537/2005, the applicant was arrested upon arriving in Hong Kong at the airport. He was a courier of 4 Japanese and 7 BNO passports which were all false. He had an unused boarding pass from Madrid to Paris and a set of unused round trip airline tickets between Spain and Cuba. The Court of Appeal affirmed a starting point of 5 years.

(c) In HKSAR v Kita Yashushi & Anor CACC 470/2006, the first defendant used a false credit card in the name of “Kiyosh Okubo” to purchase a Rolex watch (Charge 1). The purchase was verified by a false Japanese passport in the same name (Charge 2). He possessed 3 false credit cards in the same name apart from the false passport (Charge 3). The Court of Appeal acknowledged the international element and syndicated operation as aggravating factors but revised the starting points as follows:

(1) 3 ½ years for using a false credit card;

(2) 1 ½ years for using a false passport; and

(3) 3 ½ years for possessing 3 other false credit cards and the false passport.

(d) In HKSAR v Cheng Kwong-chung and Others [2002] HKCA 203, D2 was an active operator in 4 conspiracies to smuggle 2 Mainlanders into America by false passports and boarding passes. The plot was sophisticated and involved a network of accomplices such as an American citizen, people in Hong Kong and Shenzhen pulling logistic strings at various locations in Hong Kong and Shenzhen. The Court of Appeal affirmed an overall sentence of 4 ½ years after trial.

(e) In HKSAR v Yim Kim Ping and Others CACC 67/2009, the 1^st applicant was arrested at the boarding gate for Amsterdam with 2 sets of a forged Malaysian and a forged Japanese passport. Each set bore the photo and personal particulars of the 2^nd and the 3^rd applicants, who had checked in for Ecuador. He was to give them the passports upon arrival in Amsterdam. The 1^st and the 2^nd applicants would each use the forged Malaysian passport to board flight for Switzerland and then use the Japanese passport to enter Switzerland to get a job. The 1^st applicant would get $5,000 exclusive of expenses. The plan cost the 2^nd and the 3^rd applicants each RMB￥170,000. The Court of Appeal affirmed a starting point of 4 ½ years.

Sentencing this Defendant

7.The Defendant was working for a syndicate which supplied false passports made in Mainland China to be used with corresponding counterfeit credit cards in Europe.  The Defendant had full prior knowledge of these.  He first agreed to be an end-user.  He was then to fetch 4 forged passports, 2 custom-made for him and 2 custom-made for another person, across the border into Hong Kong. 

8.The ambit of the Particulars of Offence is wide enough to cover his avowed intention to prejudice shops since the 4 false passports would be used to aid the use of counterfeit credit cards in Europe.  Compared to Kita Yashushi, his role is slightly different but his culpability is on a par. I take a starting point of 3 ½ years.  I reduce it by one-third for his plea of guilty.  The amount of voluntary work rendered is not sufficient as a mitigation of substance.  There are no other mitigating factors.  His sentence is 28 months.     

Please refer to CACC538/2011 for the relevant appeal(s) to the Court of Appeal.