HKSAR v. Mok Chi Kuen

DCCC 810/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.810 OF 2012

---------------------------

---------------------------

Reasons for Sentence

1.The defendant pleaded guilty to one charge of ‘conspiracy to obtain services by deception’, contrary to s.18A of the Theft Ordinance, Cap.210 and ss.159A and 159C of the Crimes Ordinance, Cap.200.

Facts

2.The defendant met a female named Ah Po at work in late 2009 who told the defendant that he could earn money by helping her to obtain a boarding pass to a flight for another person. The defendant agreed and went to apply for a HKSAR passport.

3.Twice the defendant allowed the information in his passport to be used to purchase air tickets. For the first incident, the defendant checked in at the Hong Kong International Airport and obtained a boarding pass for a flight to Vancouver, Canada. The defendant never boarded the flight and had handed over the boarding pass to Ah Po who paid the defendant $5,000. A mainland Chinese person was intercepted by the airport authorities when attempting to board the same flight with a forged Hong Kong passport and identity card with the said boarding pass all bearing the name of the defendant. This person was later charged with making a false representation to an Immigration Officer and sentenced to 12 months’ imprisonment.

4.For the second incident, which took place about 6 months later, the defendant met with a man together with Ah Po at a restaurant in mainland China who gave an air-ticket for a flight from Macau to Canada via Taipei. The defendant agreed to do it for a reward of $7,000. The following day, the defendant travelled with Ah Po to Macau and checked in at the Macau airport and obtained two boarding passes for the flight to Canada via Taipei. The defendant boarded the plane and flew to Taipei and handed over the boarding pass for the second leg of the flight to Ah Po. The defendant then flew back to Hong Kong from Taipei.

5.The person who tried to board the second leg of the flight using the defendant’s boarding pass was stopped by the Macau authorities and sent back to Hong Kong. As it turned out, the person was someone from mainland China who was in possession of a forged HKSAR passport and identity card together with the said boarding pass for the flight from Taipei to Canada all in the defendant’s name upon her arrest after she was returned to Hong Kong. This person was later charged with making a false representation to an Immigration Officer and was sentenced to 12 months’ imprisonment.

Previous convictions

6.The defendant has 3 convictions with the last on 6^th April in 2007. He does not have any similar previous convictions.

Mitigation

7.The defendant is 46 years old. His parents are over 90 years old. The defendant received very little education and is, according to his defence counsel, not a very intelligent person. He is however hardworking and had worked in factories, as transportation worker and in a night club as a bus boy. The defendant was working full time in a pub prior to the present case, earning around $10,000 per month.

8.The defendant rents a room and sends all his earnings to his wife in mainland China. The defendant has settled down since his last offence and has been a responsible husband and father to his stepson whom he treats as his own.

9.According to counsel, the defendant committed the offence because he needed the money to settle the medical bills for his mother in law and in order to pay for the tuition fees for his son. Counsel also pointed out that the defendant had been cooperative after his arrest and that the 2 illegal immigrants in relation to the 2 boarding passes had each been sentenced to 12 months’ imprisonment.

Sentence

10.The maximum sentence for an offence under s.18A of the Theft Ordinance is 10 years’ imprisonment. There is no sentencing tariff for this particular offence.

11.The prosecution referred me to the case of HKSAR v He Wen You, CACC 235 of 2008. The appellant in that case was the mainland Chinese resident who was being sneaked onto the plane and was in a different position to our present defendant.

12.The Court of Appeal in considering the appeal stated that although the appellant took part in the 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.”

13.The defendant in our present case did not plot the scheme. He was an essential part of the scheme but also at the lowest end of the chain of command. He could be said to be someone akin to those who allowed their bank accounts to be used for money laundering for a meek reward, without any idea what their accounts will be used for.

14.There is however some difference between that and the present case. Here the defendant knew what the boarding pass will be used for, which must be to allow someone who would otherwise not be able to board a flight legitimately to do so and to reach another country as someone who he or she is not.

15.Not only did the defendant allow the information of his passport to be used, he also actively assisted in obtaining the boarding pass at the check in counter, and then in the second incident, to travel first to Macau and then to Taipei so as to allow the boarding pass to be handed over to the illegal immigrant there.

16.There is also the fact that he had conspired with Ah Po with a view for the reward of $5,000.

17.As the Court of Appeal pointed out in He Wen You, “a higher starting point is applicable to this kind of cases, which clearly involve sophisticated planning and arrangement.  Making use of Hong Kong’s position as a hub of communications, offenders assist illegal immigrants in entering a third country.  By means of a fraudulent scheme, offenders help illegal immigrants enter the restricted area of the Hong Kong International Airport, where they then use false boarding passes to board flights bound for a third country. Upon arrival in that country, they will use false identity documents for gaining entry into that country.  These activities will obviously tarnish Hong Kong’s international reputation.”

18.The defendant’s role in the present case is similar to that of D3 in the earlier case of HKSAR v Cheng Kwong Chung and others, CACC 536 of 2001, which was referred to in He Wen You. There D3 was an American citizen who had provided his American passport and other details for other people to purchase an air ticket in his name. He then presented himself at the airport in Hong Kong and checked in as someone intending to travel as a normal passenger using his own American passport and the ticket to America purchased by others mentioned above. D3 agreed to this conspiracy because he was in some financial difficulties and in the end he was paid US$1,000 for his trouble. It is however not apparent from the judgment as to what D3’s sentence was.

19.Slightly different to our defendant but still similar is the role of D4 in Cheng Kwong Chung. There D4 had checked in for a flight to the USA at the Hong Kong airport check in counter with her HKSAR passport and obtained a boarding pass. Evidence suggested that this boarding pass was then handed over to a mainland Chinese person who had later boarded the same flight that D4 had checked in for.

20.D4 was sentenced to 3 years’ imprisonment after trial. She did not appeal against her sentence and her appeal against conviction was dismissed.

21.Bearing in mind all the circumstances of the case and the background of the defendant, given the fact that the defendant had twice allowed his passport to be used in human trafficking schemes, that he did it for financial gain, but understanding that he did it in order to pay for the medical bills and school fees of his parent and child respectively, and that he was not the mastermind of the scheme, I will adopt a starting point of 36 months’ imprisonment, reducing it by 3 months to that of 33 months’ imprisonment in view of the mitigating circumstances, and then granting him the full one third discount for his plea of guilty and sentence the defendant to 22 months’ imprisonment.