HKSAR v. Tse Wing Nga, Terry

DCCC448/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 448 OF 2011

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Reasons for Sentence

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1.This defendant had pleaded not guilty to three charges of claiming to be a member of a triad society, pleaded not guilty to one charge of inviting PW1 to be a member of a triad society, these are Charges 1 to 4, one charge of conspiracy to defraud, Charge 5, and one charge of conspiracy to traffic dangerous drugs, Charge 6. The defendant was convicted after trial.

2.The defendant is 25 years old and had until this trial a clear record. 

3.The charges come about from an undercover operation, conducted by the police called “Operation High War”.  PW1, the undercover police officer, went undercover to gather intelligence about triad society activities in the Tsuen Wan area from December 2009. 

4.Almost immediately he met the defendant as a fellow student at a course at the VTC Kwai Chung Training Centre.  I would not repeat the facts of this case, the evidence of PW1, or the evidence against the defendant.  I gave full reasons and analysis in my verdict. 

5.I accepted PW1’s evidence in its entirety and found him reliable, credible and truthful.  He did not frame an innocent man, just repeating his dealings and conversations with the defendant over a period of time.  I found they amounted to all the elements of each and every offence, and accordingly convicted the defendant.         

6.The prosecution also relied on video records of interviews, which were challenged.  I say now even if there had been no admissions under caution, I would have found there to be sufficient evidence. 

7.I have considered mitigation put forward.  I do agree to some extent and I accept the defendant is not as entrenched in a triad society as he made out.  The defendant recounted tales of close association but PW1 never met anyone else associated with the defendant or came across his criminal or triad activities, except for the bogus marriage scam.       

8.Where triad offences are concerned, Charges 1 to 4, they were committed over a couple of weeks.  These offences are treated seriously and attract at least a short term of imprisonment depending on the facts and the circumstances in which an accused claims or invites someone to be a member of a triad society.  There are no specific guidelines for offences of this nature except that imprisonment is appropriate. 

9.I am sure the defendant made the claims and invited PW1 to join a triad society, but I am not so convinced he is a deep-rooted active triad society member.  I accept that some of his talk was likely to have been exaggerated.  I will reflect that in my sentence. 

10.I view more seriously Charge 5, the conspiracy to defraud.  I am sure the defendant himself entered a bogus marriage for financial gain.  I draw this conclusion from PW1’s conversations with the defendant about his so-called wife.  I am sure the defendant entered into an agreement with at least two others to arrange for and profit from bogus marriages.    

11.The defendant discussed this in front of PW1 and took PW1 to a meeting with a female to discuss the terms of such an agreement and fraud.  He repeatedly tried to convince PW1 to participate himself in a bogus marriage.  I found the evidence strong against the defendant.         

12.Entering a bogus marriage in itself would attract a term of imprisonment of 18 months.  It has been held appropriate in several authorities, and I referred myself to in particular HKSAR v Lai Kon Fai, HCMA1029/1998; HKSAR v Chen Wuchang, HCMA251/2007; HKSAR v Chui Man Yi, HCMA342/2007; and also HKSAR v Liu Qianqing, HCMA103/2007, where a term of 21 months was upheld; and this offence - entering into a bogus marriage - was described as prevalent, wholly dishonest and hard for the authorities to detect.  So to conspire to arrange these bogus marriages must be more serious than participating in these marriages.

13.In my view, a higher sentence is merited.  I do accept there was no evidence of the defendant being able to or taking the agreement any further than it being an agreement.      

14.The last charge, conspiracy to traffic dangerous drugs, relied entirely on what the defendant told PW1.  He told PW1 there was an agreement between several persons, including Ah Shing, to set up a cocaine distribution business, a delivery service to order.  He gave sufficient details to demonstrate the terms of the agreement.  PW1, however, did not witness any of these plans come to fruition.  They may have gone beyond an agreement but there is no evidence before the court of this, and I will sentence on this basis.         

15.I have considered all the facts of this case, all six charges, the evidence of PW1, the mitigation put forward, the defendant’s obvious family support, the details I have gleaned from the background report, the information from two letters submitted by two respectable members of the defendant’s community, and the defendant’s clear record.

16.Defendant, please stand up.  Ultimately, despite the defendant’s clear record, I find these charges in fact serious enough to merit a custodial sentence.  There will be no further discount from the starting points I find appropriate as the defendant was convicted after trial.

17.For Charges 1 to 4, the triad-related offences, I will sentence the defendant to 1 year imprisonment for each charge.

18.For Charge 5, conspiracy to defraud the officers of the Immigration Department of Hong Kong, I impose a term of imprisonment of 2 years’ imprisonment. 

19.For Charge 6, for conspiracy to traffic dangerous drugs, I impose a 2 year term of imprisonment.  I will consider the totality principle and a global approach.  I find it appropriate that all six charges be ordered to be served concurrently.  That would mean a total of 2 years’ imprisonment.