HKSAR v. Wang Quanfa and Another

DCCC 353/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 353 OF 2012

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Reasons for Sentence

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Charges

1.D1 is a Chinese national.  D2 is a Philippine national.  D1 departed Hong Kong for Manila by using a forged Philippine passport (3^rd Charge), and making a false representation of its contents to the Immigration Assistant (4^th Charge).  They had also conspired with others to obtain air travel services by falsely representing to the airline staff that D1 was the genuine holder of a Philippine passport (5^th Charge).  D2, who could speak English and the Philippine dialect, assisted D1 in each charge. 

2.Forensic examination confirmed that the said passport was forged by way of bio-data substitution. 

3.Cautioned interview revealed, among others, that D1 was born in Mainland China in 1973. He was to establish some business in the Philippines.  He got the forged passport and used it to travel to Hong Kong with the English and Philippine dialect interpretation provided by D2.   

4.Cautioned interview revealed, among others, that D2 was recruited as an interpreter to assist D1 to travel with a forged passport.  The reward was free accommodation in Hong Kong. 

Personal background and mitigation

5.D1 was born in Mainland China in 1973.  He is now 39 years of age.  He has a clear record.  He is married with a child.  As many of his clansmen had been doing well in Manila, he wanted to set up a lawful business there.  He was told he had to acquire a lawful passport first.  

6.He was introduced through friends to a “Nancy”, who purported to be the wife of a high official at the Ministry of Foreign Affairs.  She told him that he could buy an official Philippine passport.  He had already paid RMB¥210,000 to her.  Another and a last sum of RMB¥50,000 would be due.  The processing of his application was seemingly official.  In order to eventually verify its claimed authenticity, he was to use it to make a round trip to Hong Kong.  When he departed from Manila, he was conducted through a special immigration counter not meant for the general public.  He then realized it was a forged passport.  The 33 hours he spent in Hong Kong was for the sole purpose of testing the passport. 

7.His counsel, Mr Egan, accepts that although it sounds somewhat strange for D1 to believe that having a Philippine passport would help set up a business in Manila, those are his instructions for the purpose of mitigation.

8.D2 was born in the Philippines.  He is now 22 years of age.  He has a clear record.  He received primary education first in Mainland China and then again in the Philippines.  At the age of 17 or 18, he helped his parents run the vegetable market.  The overall income was about HK$3,000 per month.  His friend, “Nancy”, offered him a free trip if he would act as D1’s interpreter in the latter’s trip.  This was his first-ever visit to Hong Kong. 

Sentencing considerations

9.From the cases I have come across and those handed up by the prosecution and the defence, a number of features can be observed as hereinbelow. 

Range of sentences for the 2 immigration offences

10.In HKSAR v. Ozcetin Nurdan HCMA 111/2009, the defendant was a Turkish national who entered Hong Kong as a visitor with a forged passport (2^nd charge).  In Hong Kong, she stole a diamond bracelet (1^st Charge).  Her appeal against the sentence of 15 months on a plea for the 2^nd charge was dismissed. 

11.In HKSAR v. Luo Xiuhong CACC 339/2010, the defendant possessed a forged passport to assist her credit card fraud.  There was no appeal against the possession sentence of 12 months on a plea. 

12.In HKSAR v. Pak Wan Lung CACC 573/98, the defendant pleaded guilty to the pairs of making false representation to the immigration and using a forged travel document upon arrival and departure.  An overall starting point of 27 months was adopted by the Court of Appeal.  

13.In HKSAR v. Pahila [2007] 1 HKLRD 410, after reviewing the authorities, McMahon J said that there was little logic in distinguishing levels of sentence for the offences of making a false representation to the immigration and the use of a false passport to enter Hong Kong.  Each justified a sentence of up to 18 months on a plea. 

14.In HKSAR v. Stojanovic Milka CACC 110/2010, the defendant made a false representation to the immigration (2^nd charge) and used a forged passport (3^rd charge) in order to enter Hong Kong to traffic in “Ice” (1^st charge). There was no appeal against the sentence of 12 months each for the immigration charges on a plea. 

Range of sentences for the air service fraud

15.In HKSAR v. Ye Ying HCMA 184/2003, the defendant attempted to obtain air services by using another person’s boarding pass.  Jackson J stressed it was an attempted offence and reduced the starting point from 18 months to 12 months. 

16.In HKSAR v. He Wenyou (何文油)[2009] 3 HKLRD 440, the defendant was an illegal immigrant from Mainland China.  He made a false representation to the immigration when entering Hong Kong as to his final destination.  He also obtained air services by using somebody else’s boarding pass.  The Court of Appeal adopted 27 months and 32 months respectively as the starting points. 

Sentence of user versus executor for syndicate

17.In He Wenyou (何文油)(above), Cheung JA commented on the culpability of the user versus the executor for the syndicate in the following terms: 

15. In our judgment, although the applicant took part in this illegal immigration scheme, there should be some difference between the culpability of those who plotted or carried out the scheme and that of the illegal immigrants who took part in the scheme. What usually happens is that someone plots a scheme, and then solicits those who want to be smuggled to a foreign country to join the scheme, and then assists them to illegally enter that country. As the illegal immigrants only do what the mastermind instructs them to do, we consider that the mastermind or those who carry out the scheme should be more culpable. Such a difference has in fact been demonstrated in the aforesaid two Court of Appeal cases. In [HKSAR v. Cheng Kwong Chung & Others CACC 536/2001], D7 was an illegal immigrant, whereas D2 and D4 were those who carried out the illegal immigration scheme and assisted D7 therein. The trial judge adopted 3 years' imprisonment as the starting point for these two defendants’ conspiracy charges. In [HKSAR v. Hung Kong Nam CACC 346/2006], the defendants were both responsible for carrying out the illegal operation, and the trial judge adopted 3 years’ imprisonment and 3½ years’ imprisonment as the respective starting points for their conspiracy charges.

Present sentences

18.As regards D1, I take 27 months each as the starting point for the immigration offences (3^rd and 4^th Charges) and 21 months for the air service offence (5^th Charge).  Given the pleas of guilty, the sentences shall be 18 months and 14 months respectively.  There are no other mitigating factors.  I order the sentences to be served concurrently.  The overall length shall be 18 months. 

19.According to He Wenyou (何文油)(above), D2 being an executor of the scheme shall face a higher sentence.  I take 33 months each as the starting point for the immigration offences (3^rd and 4^th Charges) and 27 months for the air service offence (5^th Charge).  Given the pleas of guilty, the sentences shall be 22 months and 18 months respectively. There are no other mitigating factors.  I order the sentences to be served concurrently.  The overall length shall be 22 months.