DCCC732/2010 HKSAR v. ZHANG JINLAN AND OTHERS - LawHero
DCCC732/2010
HKSAR v. ZHANG JINLAN AND OTHERS
區域法院（刑事）H H Judge Browne6/1/2011
DCCC732/2010
A A
DCCC732/2010
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 732 OF 2010 C
D ---------------------- D
HKSAR
E E
v.
F Zhang Jinlan (D1) F
Cui Xuezhu (D2)
G Lee Shinwon (D3) G
Oh Eunju (D4)
Lee Min Soo (D5)
H H
----------------------
I I
Before: H H Judge Browne
Date: 7 January 2011 at 3.07 pm
J Present: Mr Andrew Allman-Brown, Counsel on Fiat, for HKSAR J
Mr Terence K H To, of To, Lam & Co., assigned by the
Director of Legal Aid, for the 1st Defendant
K Mr Peter Julian Cahill, instructed by Messrs Cheung, K
Chan & Chung, assigned by the Director of Legal Aid,
for the 2nd and 4th defendants
L L
Ms Suzanne Sim Siow Eng, instructed by Messrs Ko &
Chow, assigned by the Director of Legal Aid, for the
M 3rd defendant M
Mr Edward Fan, instructed by Howell & Co., assigned by
the Director of Legal Aid, for the 5th defendant
N Offence: (1) & (2) Making a false representation to an N
Immigration Assistant lawfully acting under or in the
O
execution of Part II of the Immigration Ordinance (向一 O
名根據或為執《入境條例》第II部而合法行事的入境事務助理員作出虛假
的陳述)
P P
(3) & (4) Possession of a forged travel document (管有
虛假的旅行證件)
Q (5) Conspiracy to obtain services by deception (串謀以欺 Q
騙手段取得服務)
R R
---------------------
S Reasons for Sentence S
---------------------
T T
U U
V CRT36/7.1.2011/ML 1 DCCC732/2010/Sentence V
A A
1. The defendants faced charges relating to a scheme
devised to enable persons from the Mainland to be illegally taken
B B
into Australia.
C C
2. The 1st and 2nd defendants were the persons whom it was
D intended to illegally traffic into Australia. They were charged D
with two pairs of offences. Those offences were offences of
E E
making a false representation to an Immigration Assistant and
being in possession of a forged travel document.
F F
G 3. All five defendants were charged with a conspiracy to G
obtain services by deception, namely the Cathay Pacific airline
H flight from Hong Kong to Sydney. H
I I
4. The first two defendants indicated that they intended
to plead not guilty to the 5th charge, and guilty to the two
J J
charges which they each faced. This was accepted by the
K prosecution. K
L 5. I order that the conspiracy charge against each of them L
lay on the file not to be proceeded with without the consent of
M this court or the Court of Appeal. M
N N
6. The 3rd defendant pleaded guilty to the 5th charge of
conspiracy to obtain services by deception.
O O
P 7. The 4th and 5th defendants pleaded not guilty to Charge P
5 and I convicted them after trial.
Q Q
8. These charges concerned a scheme to facilitate the
R R
illegal passage into Sydney of the 1st and 2nd defendants, both
of whom are Mainlanders.
S S
T 9. D3, D4 and D5 travelled to Hong Kong on 23 April from T
Incheon International Airport in Korea using Cathay Pacific
U airline tickets for flights to Sydney via Hong Kong. U
V CRT36/7.1.2011/ML 2 DCCC732/2010/Sentence V
A A
10. Whilst in transit in Hong Kong, the boarding passes for
B B
the Sydney flight were taken from D4 and D5, and later given to
C D1 and D2. They had gained access to the departure lounge at the C
airport using tickets indicating that their destination was
D Guangzhou. They received the boarding passes belonging to D4 and D
D5, and they were already in possession of false passports in the
E E
names of D4 and D5, but which bore their own photographs.
F F
11. D1, in possession of D4’s boarding pass and the forged
G passport in the name of D4, was stopped by an alert Cathay G
Pacific attendant when she attempted to board the Sydney flight,
H CX111. The flight attendant suspected that the passport was H
forged.
I I
12. D2 was in possession of D5’s boarding pass and a forged
J J
passport in the name of D5. He had managed to board the Sydney
K flight. Again, due to the diligence of the same Cathay Pacific K
staff, who realised that D1 and D2 were travelling together, she
L boarded the flight and the 2nd defendant was taken from that L
flight.
M M
13. When the 2nd defendant was taken from that flight, he
N N
indicated to the airline staff that their genuine PRC passports
had been discarded in a refuse bin near the boarding gate and
O O
those passports were recovered from there.
P P
14. The airline and Immigration authorities became aware
Q that D3 was travelling with them. He, in fact, had proceeded on Q
to Sydney. He was detained at Sydney Airport and then sent back
R R
to Hong Kong and arrested.
S S
15. D4 and D5 were arrested on 25 April when they returned
T to Hong Kong International Airport, intending to travel back to T
Korea.
U U
V CRT36/7.1.2011/ML 3 DCCC732/2010/Sentence V
A A
16. All the defendants were interviewed and gave varying
accounts as to how they became involved in these offences.
B B
C 17. D1 told the immigration officers that in early April C
2010, she came to know a clansman surnamed Li, who offered to
D arrange for her to work in Australia, and the cost was to be D
RMB110,000. No money was to be paid at the time, but the money
E E
was to be paid once she had found employment in Australia.
F F
18. D1 accepted the offer and gave Li her PRC passport and
G two photographs of herself in order to Li could make the G
necessary arrangements.
H H
19. On 18 April, she was told that the trip had been
I I
arranged. She was told that a Malaysian visa had been affixed to
her passport and she was told that when she entered Hong Kong,
J J
she was to tell the Immigration authorities that it was her
K intention to travel to Malaysia for leisure. Li also asked D1 to K
travel to Shenzhen on 22 April.
L L
20. When she arrived in Shenzhen, Li arranged for her to
M stay in a hotel overnight and asked her to go to Hong Kong on M
23 April. She was also shown a forged Korean passport on the
N N
same day. She was told that she would have to use that passport
to seek entry into Australia. She admitted that the photograph
O O
on the passport was hers and said she could not read the
P particulars. P
Q 21. Upon arrival at Hong Kong International Airport, Li Q
produced an e-ticket to Guangzhou and asked the 1st defendant to
R R
check in for the Guangzhou flight, which she did, and she used
her PRC passport for departure clearance. She falsely
S S
represented to the Immigration Officer that her destination was
T Guangzhou. T
U U
V CRT36/7.1.2011/ML 4 DCCC732/2010/Sentence V
A A
22. Li met up with her in the departure lounge and took her
to a Korean who passed her the Korean passport, which she had
B B
earlier seen in Shenzhen, as well as a boarding pass for
C Australia, which had been issued to D4. She was instructed to C
board the flight concerned at Gate 3. She was told to conceal
D her own PRC passport, the e-ticket and boarding pass for D
Guangzhou. She said that she then put those into her bag.
E E
23. Whilst she was lining up for boarding, the airline
F F
staff inspecting her boarding pass did not allow her to board the
G flight and she was referred to the Immigration Department. G
H 24. When D2 was interviewed, he told the Immigration H
authorities that about a month prior to the day of his arrest, he
I I
learnt from the Internet and newspapers that a Chinese Korean,
surnamed Li, could help people to go to Australia at lower costs.
J J
He passed his PRC passport and four photographs to Li, who
K promised to get him an Australia visa. K
L 25. In mid-April, Li called and told him everything was L
ready. The 2nd defendant asked for his passport back and Li said
M he was in Beijing. The 2nd defendant travelled to Beijing as he M
was in a hurry to get his passport back.
N N
26. Upon arriving in Beijing, he was told that Li had
O O
already gone to Shenzhen, and he travelled to Shenzhen the
P following day. P
Q 27. He met Li in the Shenzhen Airport, whereupon Li Q
returned the passport to him. Li later picked up a woman, who
R R
turned out to be D1, at Shenzhen Airport and brought D1 and D2 to
Hong Kong via Lowu.
S S
T 28. The 2nd defendant said he noticed that his PRC passport T
had a Malaysian visa. According to him, he asked Li why a
U Malaysian visa, as opposed to Australian visa, had been affixed, U
V CRT36/7.1.2011/ML 5 DCCC732/2010/Sentence V
A A
and was told by Li that he would realise the arrangements when
they got to Hong Kong.
B B
C 29. At arrival clearance in Hong Kong, Li lined up in front C
of him, and the 2nd defendant saw Li represent to the Immigration
D official that Li was departing for Malaysia. The 2nd defendant D
then went forward, asked if he was in Li’s company, and he
E E
answered that he was.
F F
30. After arriving in Hong Kong, the 1st and 2nd defendants
G and Li stayed overnight in a hotel. G
H 31. On 23 April, Li showed the 2nd defendant the Korean H
passport which had been issued in the name of D5. He noticed it
I I
carried his photograph but not his personal particulars.
J J
32. At the hotel, Li gave D2 and e-ticket for Guangzhou,
K and he was to use this for checking in at the Guangzhou flight K
and to use his PRC passport. He knew he would be given the
L Sydney boarding pass when he got to the boarding gate. L
M 33. D2 later went to the boarding gate for Sydney. He met M
an unknown Korean male who handed over the Sydney boarding pass
N N
and he used this pass and the Korean passport to board the
flight. He saw the Korean man board the same flight.
O O
P 34. He said that he actually got on the flight but was P
offloaded about five minutes later.
Q Q
35. The 3rd defendant was interviewed.
R R
36. He told the Immigration authorities he was Korean. He
S S
came to Hong Kong by virtue of an agreement with a Mr Choi, whom
T he came know through the Internet. T
U U
V CRT36/7.1.2011/ML 6 DCCC732/2010/Sentence V
A A
37. According to his record of interview, he said that
Mr Choi offered him free travel (air tickets and hotel
B B
accommodation) to Sydney. In return, he was required to provide
C three passport copies, accompany two of the passport holders to C
Hong Kong, and transfer Sydney boarding passes to unknown
D persons. He sent Choi the passport copies in order to obtain the D
reward of free travel.
E E
38. The two passport holders who travelled with D3 from
F F
Incheon, Korea to Hong Kong were D4 and D5, whom he described as
G being his friends. He said he followed Choi’s plan, checked in G
for the flight to Sydney.
H H
39. Upon arrival at Hong Kong, he, together with D4 and D5,
I I
entered Hong Kong. He took their boarding passes. A stranger
approached and he handed them over to the stranger, and those
J J
were handed over to a man and woman he did not know. Thereafter,
K the stranger disappeared without saying a word. K
L 40. He said he boarded the flight. He did not know what L
happened to the man and woman, and he said that he was stopped at
M Sydney Airport and sent back. M
N N
41. A computer belonging to the defendant was found and on
the hard disk of that computer, the police retrieved passport
O O
images of D3, D4 and D5, as well as a record of D3’s payment for
P D4 and D5’s accommodation in Hong Kong. P
Q 42. I am told that all of the defendants have clear Q
records, both in Hong Kong and in their countries of origin.
R R
43. I am told that the 1st defendant is 41 years of age.
S S
She was born in the northeast of China and worked as a farmer.
T She has had junior secondary level education. T
U U
V CRT36/7.1.2011/ML 7 DCCC732/2010/Sentence V
A A
44. Although she is married, she has lost contact with her
husband, and has a daughter, 21, who underwent major surgery
B B
recently at a cost of RMB50,000, which she had to borrow from
C loansharks. She only earns RMB500 per month. Her daughter is C
unemployed. She has a mother aged 67 in poor health, who suffers
D from lung and heart diseases. She gives RMB100 a month to D
support her mother, and she is the sole breadwinner of the
E E
family.
F F
45. I am told that she was tempted to work in Australia in
G order to earn money to repay the loansharks. She knew nothing G
about the details of the arrangements which were being made in
H order for her to gain access to Australia. In order to make H
those arrangements, she had to agree to pay RMB110,000, which was
I I
to be repaid once she gained access to Australia and obtained
employment.
J J
K 46. It was urged upon me that the offence was motivated K
entirely because of her economic situation.
L L
47. She has a clear record.
M M
48. She admitted the offence, and made full and frank
N N
admission when she was stopped by the Immigration authorities.
O O
49. I am told that the 2nd defendant is 23. He was born in
P China. He is unemployed. At the time of this offence, he was in P
his fourth year of university education, studying Japanese. The
Q cost for the arrangements for him to travel to Australia was Q
RMB110,000 which was to be paid later.
R R
50. I am told by counsel representing him that initially he
S S
thought that there was nothing wrong with the arrangements which
T were being made, and that his suspicions were only aroused when T
he arrived in Shenzhen and saw that a Malaysian visa had been
U attached to his passport, and it is clear that that having U
V CRT36/7.1.2011/ML 8 DCCC732/2010/Sentence V
A A
occurred, he carried on with the arrangements to come to Hong
Kong and was later in possession of the forged passport and
B B
boarding pass belonging to D5.
C C
51. A number of letters had been submitted to the court
D asking the court for leniency. D
E E
52. The 3rd defendant is 36 years of age. He is university
educated. He is an architect. Prior to his arrest, he was the
F F
chief officer of marketing companies in Korea. He has a father,
G 68, who is retired, and a mother, 63, who is also retired, and a G
younger sister of 31. In Korea he was earning some HK$40,000 a
H month and was the major breadwinner for the family. H
I I
53. He is single and there is evidence been produced that
he has no record in Korea.
J J
K 54. He pleaded guilty to the offences. He was co-operative K
and remorseful.
L L
55. It was urged upon me that this offence was committed
M out of stupidity and a desire to travel for free to Australia in M
order to do research.
N N
56. I indicated to his counsel that I did not accept that
O O
mitigation, since the evidence has shown quite clearly that he
P was only intending to be in Sydney for a weekend. P
Q 57. I am told that on a previous occasion, his father, in Q
fact, had come to court to support his son.
R R
58. A number of letters have been submitted to the court
S S
asking for leniency. Letters of support have been supplied from
T his colleagues; a letter from a monk whom he followed in Korea. T
U U
V CRT36/7.1.2011/ML 9 DCCC732/2010/Sentence V
A A
59. There is evidence of awards from a government
department regarding community activities carried out in Korea.
B B
C 60. As regards D4 and D5, they pleaded not guilty and much C
of their backgrounds was told to the court during the course of
D the trial. D
E E
61. D4 is 39 years of age, born in Korea and educated till
the age of 19. She was working as a caddy on a golf course in
F F
Korea. She is a single lady.
G G
62. D5 is now 33. He is single. He lives with his parents
H who are aged 70, the father; his mother is 67, and both retired, H
and he supports them. For the last three years he has worked as
I I
a vocal trainer earning some $10,000 per month.
J J
63. At the outset of these proceedings, I was handed a
K report from the West Kowloon Psychiatric Centre with regard to K
the defendant’s condition. He suffers from Gilles de la
L Tourette’s Syndrome, and this manifests itself with a show of L
marked vocal tics like hissing, grunting or coughing.
M M
64. Whilst he has been in custody, he has been mocked by
N N
other inmates for his abnormal behaviour. When he was examined
by the psychiatrist, he was found to be restless and fidget, and
O O
bouts of suddenly jumping up from his seat, and all those
P symptoms have manifested themselves during the course of this P
trial.
Q Q
65. I have been referred to two cases in particular.
R R
66. One of the cases is HKSAR v He Wenyou, CACC235/2008.
S S
This case involved offences very similar to the cases which we
T are dealing with today. T
U U
V CRT36/7.1.2011/ML 10 DCCC732/2010/Sentence V
A A
67. The Court of Appeal in that case said that this kind of
case clearly involves sophisticated planning and arrangement,
B B
making use of Hong Kong’s position as a hub of communications.
C C
68. Offenders assist illegal immigrants in entering a third
D country. By means of a fraudulent scheme, offenders help illegal D
immigrants to enter the restricted area of the Hong Kong
E E
International Airport where they then use false boarding passes
to board flights bound for a third country. Upon arrival in that
F F
country, they will use false identity documents for gaining entry
G to that country. G
H 69. These activities will obviously tarnish Hong Kong’s H
international reputation.
I I
70. Furthermore, as a result of those activities,
J J
Immigration authorities of foreign countries will become wary of
K visitors from Hong Kong, even when they were holding lawful K
travel documents, which means that visitors from Hong Kong will
L have to suffer a certain amount of inconvenience when they enter L
those countries.
M M
71. Severe deterrent sentences must, therefore, be imposed
N N
for these offences.
O O
72. Similar sentiments were echoed in an earlier decision
P of the Court of Appeal in HKSAR v Cheng Kwong Chung and Others, P
CACC536/2001.
Q Q
73. The court, when speaking of a similar scenario, said
R R
these offences were extremely well-planned, a substantial amount
of money is paid, and refers to the high financial rewards to be
S S
expected from this form of human trafficking. The court said
T that they take the view that such offences are very serious. T
They involve the exploitation of persons on the Mainland for
U substantial sums. U
V CRT36/7.1.2011/ML 11 DCCC732/2010/Sentence V
A A
74. I note also that the principle of comity of nations
B B
requires that the courts show disapprobation for such offences.
C C
75. Hong Kong is a major international airport. It is a
D key Asian airport for global airline operations, and Hong Kong D
must deal with such offences and be seen to deal with such
E E
offences in way which deters their commission.
F F
76. The obvious intention is that the illegal immigrants
G will work in the country of destination to repay the high cost of G
arranging for the immigration to that country. These countries
H have no idea as to the identity or character of the persons H
entering their countries. It follows from the scheme that such
I I
persons must live and work in those countries illegally.
J J
77. I have considered everything that has been said in
K mitigation and I have considered all the facts that have been K
placed before me, including the various letters that have been
L submitted to the court. L
M 78. As regards the 1st defendant, on Charge 1 and Charge 3, M
I take a starting point for those offences of 3 years’
N N
imprisonment.
O O
79. She will be given credit for her guilty pleas and those
P sentences will be reduced to 2 years’ imprisonment, and I order P
that such sentences will run concurrently.
Q Q
80. I adopt the same starting point for the 2nd defendant
R R
and I allow the reduction for his guilty plea.
S S
81. However, in addition, I accept what has been said in
T mitigation, that the defendant initially was not aware that he T
was being involved in an illegal scheme, and that only became
U clear when he got to Shenzhen and saw the Malaysian visa attached U
V CRT36/7.1.2011/ML 12 DCCC732/2010/Sentence V
A A
to his passport. However, thereafter, he agreed to continue with
the scheme.
B B
C 82. I have decided to reduce his sentence by one of C
3 months, and so the sentence for each of his offences will be
D 1 year and 9 months; both sentences to run concurrently. D
E E
83. The 3rd defendant is the most culpable of the persons
appearing before this court. He may not be the mastermind of
F F
this scheme, but he is not far behind the mastermind. It was he
G that came down from Korea with D4 and D5. It was he that G
arranged for their Sydney boarding passes to be taken from them
H and supplied to D1 and D2, and it was he that was going down to H
Sydney together with D1 and D2.
I I
84. I take a starting point in his case of 4½ years’
J J
imprisonment.
K K
85. The only mitigation is his guilty plea.
L L
86. He will be given full credit for that, so the sentence
M imposed upon him will be a sentence of 3 years’ imprisonment. M
N N
87. I convicted D4 and D5 after trial. I was satisfied
that they came to Hong Kong as part of this conspiracy and they
O O
became aware that boarding passes were to be supplied to third
P parties to enable them to travel illegally to Australia. P
Q 88. In my view, their culpability is not as high as that of Q
D3, and I, therefore, take a starting point of 4 years’
R R
imprisonment in respect of their offences.
S S
89. As far as the 4th defendant is concerned, none of the
T matters that have been urged upon me in mitigation would allow me T
to reduce that sentence.
U U
V CRT36/7.1.2011/ML 13 DCCC732/2010/Sentence V
A A
90. She was convicted after trial, she will go to prison
for 4 years.
B B
C 91. As regards the 5th defendant, the only mitigating C
feature, as far as he is concerned, is the report which I have
D received from the West Kowloon Psychiatric Centre, and which I D
accept. The psychiatrist opined that he will have a more
E E
difficult time in custody than other defendants. To some extent,
that is perhaps something he should have taken into account when
F F
he was originally persuaded to go along with this conspiracy.
G G
92. However, in his case, I have decided to reduce the
H sentence by 4 months, to a sentence of 3 years and H
8 months.
I I
J J
K
Browne K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V CRT36/7.1.2011/ML 14 DCCC732/2010/Sentence V
A A
DCCC732/2010
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 732 OF 2010 C
D ---------------------- D
HKSAR
E E
v.
F Zhang Jinlan (D1) F
Cui Xuezhu (D2)
G Lee Shinwon (D3) G
Oh Eunju (D4)
Lee Min Soo (D5)
H H
----------------------
I I
Before: H H Judge Browne
Date: 7 January 2011 at 3.07 pm
J Present: Mr Andrew Allman-Brown, Counsel on Fiat, for HKSAR J
Mr Terence K H To, of To, Lam & Co., assigned by the
Director of Legal Aid, for the 1st Defendant
K Mr Peter Julian Cahill, instructed by Messrs Cheung, K
Chan & Chung, assigned by the Director of Legal Aid,
for the 2nd and 4th defendants
L L
Ms Suzanne Sim Siow Eng, instructed by Messrs Ko &
Chow, assigned by the Director of Legal Aid, for the
M 3rd defendant M
Mr Edward Fan, instructed by Howell & Co., assigned by
the Director of Legal Aid, for the 5th defendant
N Offence: (1) & (2) Making a false representation to an N
Immigration Assistant lawfully acting under or in the
O
execution of Part II of the Immigration Ordinance (向一 O
名根據或為執《入境條例》第II部而合法行事的入境事務助理員作出虛假
的陳述)
P P
(3) & (4) Possession of a forged travel document (管有
虛假的旅行證件)
Q (5) Conspiracy to obtain services by deception (串謀以欺 Q
騙手段取得服務)
R R
---------------------
S Reasons for Sentence S
---------------------
T T
U U
V CRT36/7.1.2011/ML 1 DCCC732/2010/Sentence V
A A
1. The defendants faced charges relating to a scheme
devised to enable persons from the Mainland to be illegally taken
B B
into Australia.
C C
2. The 1st and 2nd defendants were the persons whom it was
D intended to illegally traffic into Australia. They were charged D
with two pairs of offences. Those offences were offences of
E E
making a false representation to an Immigration Assistant and
being in possession of a forged travel document.
F F
G 3. All five defendants were charged with a conspiracy to G
obtain services by deception, namely the Cathay Pacific airline
H flight from Hong Kong to Sydney. H
I I
4. The first two defendants indicated that they intended
to plead not guilty to the 5th charge, and guilty to the two
J J
charges which they each faced. This was accepted by the
K prosecution. K
L 5. I order that the conspiracy charge against each of them L
lay on the file not to be proceeded with without the consent of
M this court or the Court of Appeal. M
N N
6. The 3rd defendant pleaded guilty to the 5th charge of
conspiracy to obtain services by deception.
O O
P 7. The 4th and 5th defendants pleaded not guilty to Charge P
5 and I convicted them after trial.
Q Q
8. These charges concerned a scheme to facilitate the
R R
illegal passage into Sydney of the 1st and 2nd defendants, both
of whom are Mainlanders.
S S
T 9. D3, D4 and D5 travelled to Hong Kong on 23 April from T
Incheon International Airport in Korea using Cathay Pacific
U airline tickets for flights to Sydney via Hong Kong. U
V CRT36/7.1.2011/ML 2 DCCC732/2010/Sentence V
A A
10. Whilst in transit in Hong Kong, the boarding passes for
B B
the Sydney flight were taken from D4 and D5, and later given to
C D1 and D2. They had gained access to the departure lounge at the C
airport using tickets indicating that their destination was
D Guangzhou. They received the boarding passes belonging to D4 and D
D5, and they were already in possession of false passports in the
E E
names of D4 and D5, but which bore their own photographs.
F F
11. D1, in possession of D4’s boarding pass and the forged
G passport in the name of D4, was stopped by an alert Cathay G
Pacific attendant when she attempted to board the Sydney flight,
H CX111. The flight attendant suspected that the passport was H
forged.
I I
12. D2 was in possession of D5’s boarding pass and a forged
J J
passport in the name of D5. He had managed to board the Sydney
K flight. Again, due to the diligence of the same Cathay Pacific K
staff, who realised that D1 and D2 were travelling together, she
L boarded the flight and the 2nd defendant was taken from that L
flight.
M M
13. When the 2nd defendant was taken from that flight, he
N N
indicated to the airline staff that their genuine PRC passports
had been discarded in a refuse bin near the boarding gate and
O O
those passports were recovered from there.
P P
14. The airline and Immigration authorities became aware
Q that D3 was travelling with them. He, in fact, had proceeded on Q
to Sydney. He was detained at Sydney Airport and then sent back
R R
to Hong Kong and arrested.
S S
15. D4 and D5 were arrested on 25 April when they returned
T to Hong Kong International Airport, intending to travel back to T
Korea.
U U
V CRT36/7.1.2011/ML 3 DCCC732/2010/Sentence V
A A
16. All the defendants were interviewed and gave varying
accounts as to how they became involved in these offences.
B B
C 17. D1 told the immigration officers that in early April C
2010, she came to know a clansman surnamed Li, who offered to
D arrange for her to work in Australia, and the cost was to be D
RMB110,000. No money was to be paid at the time, but the money
E E
was to be paid once she had found employment in Australia.
F F
18. D1 accepted the offer and gave Li her PRC passport and
G two photographs of herself in order to Li could make the G
necessary arrangements.
H H
19. On 18 April, she was told that the trip had been
I I
arranged. She was told that a Malaysian visa had been affixed to
her passport and she was told that when she entered Hong Kong,
J J
she was to tell the Immigration authorities that it was her
K intention to travel to Malaysia for leisure. Li also asked D1 to K
travel to Shenzhen on 22 April.
L L
20. When she arrived in Shenzhen, Li arranged for her to
M stay in a hotel overnight and asked her to go to Hong Kong on M
23 April. She was also shown a forged Korean passport on the
N N
same day. She was told that she would have to use that passport
to seek entry into Australia. She admitted that the photograph
O O
on the passport was hers and said she could not read the
P particulars. P
Q 21. Upon arrival at Hong Kong International Airport, Li Q
produced an e-ticket to Guangzhou and asked the 1st defendant to
R R
check in for the Guangzhou flight, which she did, and she used
her PRC passport for departure clearance. She falsely
S S
represented to the Immigration Officer that her destination was
T Guangzhou. T
U U
V CRT36/7.1.2011/ML 4 DCCC732/2010/Sentence V
A A
22. Li met up with her in the departure lounge and took her
to a Korean who passed her the Korean passport, which she had
B B
earlier seen in Shenzhen, as well as a boarding pass for
C Australia, which had been issued to D4. She was instructed to C
board the flight concerned at Gate 3. She was told to conceal
D her own PRC passport, the e-ticket and boarding pass for D
Guangzhou. She said that she then put those into her bag.
E E
23. Whilst she was lining up for boarding, the airline
F F
staff inspecting her boarding pass did not allow her to board the
G flight and she was referred to the Immigration Department. G
H 24. When D2 was interviewed, he told the Immigration H
authorities that about a month prior to the day of his arrest, he
I I
learnt from the Internet and newspapers that a Chinese Korean,
surnamed Li, could help people to go to Australia at lower costs.
J J
He passed his PRC passport and four photographs to Li, who
K promised to get him an Australia visa. K
L 25. In mid-April, Li called and told him everything was L
ready. The 2nd defendant asked for his passport back and Li said
M he was in Beijing. The 2nd defendant travelled to Beijing as he M
was in a hurry to get his passport back.
N N
26. Upon arriving in Beijing, he was told that Li had
O O
already gone to Shenzhen, and he travelled to Shenzhen the
P following day. P
Q 27. He met Li in the Shenzhen Airport, whereupon Li Q
returned the passport to him. Li later picked up a woman, who
R R
turned out to be D1, at Shenzhen Airport and brought D1 and D2 to
Hong Kong via Lowu.
S S
T 28. The 2nd defendant said he noticed that his PRC passport T
had a Malaysian visa. According to him, he asked Li why a
U Malaysian visa, as opposed to Australian visa, had been affixed, U
V CRT36/7.1.2011/ML 5 DCCC732/2010/Sentence V
A A
and was told by Li that he would realise the arrangements when
they got to Hong Kong.
B B
C 29. At arrival clearance in Hong Kong, Li lined up in front C
of him, and the 2nd defendant saw Li represent to the Immigration
D official that Li was departing for Malaysia. The 2nd defendant D
then went forward, asked if he was in Li’s company, and he
E E
answered that he was.
F F
30. After arriving in Hong Kong, the 1st and 2nd defendants
G and Li stayed overnight in a hotel. G
H 31. On 23 April, Li showed the 2nd defendant the Korean H
passport which had been issued in the name of D5. He noticed it
I I
carried his photograph but not his personal particulars.
J J
32. At the hotel, Li gave D2 and e-ticket for Guangzhou,
K and he was to use this for checking in at the Guangzhou flight K
and to use his PRC passport. He knew he would be given the
L Sydney boarding pass when he got to the boarding gate. L
M 33. D2 later went to the boarding gate for Sydney. He met M
an unknown Korean male who handed over the Sydney boarding pass
N N
and he used this pass and the Korean passport to board the
flight. He saw the Korean man board the same flight.
O O
P 34. He said that he actually got on the flight but was P
offloaded about five minutes later.
Q Q
35. The 3rd defendant was interviewed.
R R
36. He told the Immigration authorities he was Korean. He
S S
came to Hong Kong by virtue of an agreement with a Mr Choi, whom
T he came know through the Internet. T
U U
V CRT36/7.1.2011/ML 6 DCCC732/2010/Sentence V
A A
37. According to his record of interview, he said that
Mr Choi offered him free travel (air tickets and hotel
B B
accommodation) to Sydney. In return, he was required to provide
C three passport copies, accompany two of the passport holders to C
Hong Kong, and transfer Sydney boarding passes to unknown
D persons. He sent Choi the passport copies in order to obtain the D
reward of free travel.
E E
38. The two passport holders who travelled with D3 from
F F
Incheon, Korea to Hong Kong were D4 and D5, whom he described as
G being his friends. He said he followed Choi’s plan, checked in G
for the flight to Sydney.
H H
39. Upon arrival at Hong Kong, he, together with D4 and D5,
I I
entered Hong Kong. He took their boarding passes. A stranger
approached and he handed them over to the stranger, and those
J J
were handed over to a man and woman he did not know. Thereafter,
K the stranger disappeared without saying a word. K
L 40. He said he boarded the flight. He did not know what L
happened to the man and woman, and he said that he was stopped at
M Sydney Airport and sent back. M
N N
41. A computer belonging to the defendant was found and on
the hard disk of that computer, the police retrieved passport
O O
images of D3, D4 and D5, as well as a record of D3’s payment for
P D4 and D5’s accommodation in Hong Kong. P
Q 42. I am told that all of the defendants have clear Q
records, both in Hong Kong and in their countries of origin.
R R
43. I am told that the 1st defendant is 41 years of age.
S S
She was born in the northeast of China and worked as a farmer.
T She has had junior secondary level education. T
U U
V CRT36/7.1.2011/ML 7 DCCC732/2010/Sentence V
A A
44. Although she is married, she has lost contact with her
husband, and has a daughter, 21, who underwent major surgery
B B
recently at a cost of RMB50,000, which she had to borrow from
C loansharks. She only earns RMB500 per month. Her daughter is C
unemployed. She has a mother aged 67 in poor health, who suffers
D from lung and heart diseases. She gives RMB100 a month to D
support her mother, and she is the sole breadwinner of the
E E
family.
F F
45. I am told that she was tempted to work in Australia in
G order to earn money to repay the loansharks. She knew nothing G
about the details of the arrangements which were being made in
H order for her to gain access to Australia. In order to make H
those arrangements, she had to agree to pay RMB110,000, which was
I I
to be repaid once she gained access to Australia and obtained
employment.
J J
K 46. It was urged upon me that the offence was motivated K
entirely because of her economic situation.
L L
47. She has a clear record.
M M
48. She admitted the offence, and made full and frank
N N
admission when she was stopped by the Immigration authorities.
O O
49. I am told that the 2nd defendant is 23. He was born in
P China. He is unemployed. At the time of this offence, he was in P
his fourth year of university education, studying Japanese. The
Q cost for the arrangements for him to travel to Australia was Q
RMB110,000 which was to be paid later.
R R
50. I am told by counsel representing him that initially he
S S
thought that there was nothing wrong with the arrangements which
T were being made, and that his suspicions were only aroused when T
he arrived in Shenzhen and saw that a Malaysian visa had been
U attached to his passport, and it is clear that that having U
V CRT36/7.1.2011/ML 8 DCCC732/2010/Sentence V
A A
occurred, he carried on with the arrangements to come to Hong
Kong and was later in possession of the forged passport and
B B
boarding pass belonging to D5.
C C
51. A number of letters had been submitted to the court
D asking the court for leniency. D
E E
52. The 3rd defendant is 36 years of age. He is university
educated. He is an architect. Prior to his arrest, he was the
F F
chief officer of marketing companies in Korea. He has a father,
G 68, who is retired, and a mother, 63, who is also retired, and a G
younger sister of 31. In Korea he was earning some HK$40,000 a
H month and was the major breadwinner for the family. H
I I
53. He is single and there is evidence been produced that
he has no record in Korea.
J J
K 54. He pleaded guilty to the offences. He was co-operative K
and remorseful.
L L
55. It was urged upon me that this offence was committed
M out of stupidity and a desire to travel for free to Australia in M
order to do research.
N N
56. I indicated to his counsel that I did not accept that
O O
mitigation, since the evidence has shown quite clearly that he
P was only intending to be in Sydney for a weekend. P
Q 57. I am told that on a previous occasion, his father, in Q
fact, had come to court to support his son.
R R
58. A number of letters have been submitted to the court
S S
asking for leniency. Letters of support have been supplied from
T his colleagues; a letter from a monk whom he followed in Korea. T
U U
V CRT36/7.1.2011/ML 9 DCCC732/2010/Sentence V
A A
59. There is evidence of awards from a government
department regarding community activities carried out in Korea.
B B
C 60. As regards D4 and D5, they pleaded not guilty and much C
of their backgrounds was told to the court during the course of
D the trial. D
E E
61. D4 is 39 years of age, born in Korea and educated till
the age of 19. She was working as a caddy on a golf course in
F F
Korea. She is a single lady.
G G
62. D5 is now 33. He is single. He lives with his parents
H who are aged 70, the father; his mother is 67, and both retired, H
and he supports them. For the last three years he has worked as
I I
a vocal trainer earning some $10,000 per month.
J J
63. At the outset of these proceedings, I was handed a
K report from the West Kowloon Psychiatric Centre with regard to K
the defendant’s condition. He suffers from Gilles de la
L Tourette’s Syndrome, and this manifests itself with a show of L
marked vocal tics like hissing, grunting or coughing.
M M
64. Whilst he has been in custody, he has been mocked by
N N
other inmates for his abnormal behaviour. When he was examined
by the psychiatrist, he was found to be restless and fidget, and
O O
bouts of suddenly jumping up from his seat, and all those
P symptoms have manifested themselves during the course of this P
trial.
Q Q
65. I have been referred to two cases in particular.
R R
66. One of the cases is HKSAR v He Wenyou, CACC235/2008.
S S
This case involved offences very similar to the cases which we
T are dealing with today. T
U U
V CRT36/7.1.2011/ML 10 DCCC732/2010/Sentence V
A A
67. The Court of Appeal in that case said that this kind of
case clearly involves sophisticated planning and arrangement,
B B
making use of Hong Kong’s position as a hub of communications.
C C
68. Offenders assist illegal immigrants in entering a third
D country. By means of a fraudulent scheme, offenders help illegal D
immigrants to enter the restricted area of the Hong Kong
E E
International Airport where they then use false boarding passes
to board flights bound for a third country. Upon arrival in that
F F
country, they will use false identity documents for gaining entry
G to that country. G
H 69. These activities will obviously tarnish Hong Kong’s H
international reputation.
I I
70. Furthermore, as a result of those activities,
J J
Immigration authorities of foreign countries will become wary of
K visitors from Hong Kong, even when they were holding lawful K
travel documents, which means that visitors from Hong Kong will
L have to suffer a certain amount of inconvenience when they enter L
those countries.
M M
71. Severe deterrent sentences must, therefore, be imposed
N N
for these offences.
O O
72. Similar sentiments were echoed in an earlier decision
P of the Court of Appeal in HKSAR v Cheng Kwong Chung and Others, P
CACC536/2001.
Q Q
73. The court, when speaking of a similar scenario, said
R R
these offences were extremely well-planned, a substantial amount
of money is paid, and refers to the high financial rewards to be
S S
expected from this form of human trafficking. The court said
T that they take the view that such offences are very serious. T
They involve the exploitation of persons on the Mainland for
U substantial sums. U
V CRT36/7.1.2011/ML 11 DCCC732/2010/Sentence V
A A
74. I note also that the principle of comity of nations
B B
requires that the courts show disapprobation for such offences.
C C
75. Hong Kong is a major international airport. It is a
D key Asian airport for global airline operations, and Hong Kong D
must deal with such offences and be seen to deal with such
E E
offences in way which deters their commission.
F F
76. The obvious intention is that the illegal immigrants
G will work in the country of destination to repay the high cost of G
arranging for the immigration to that country. These countries
H have no idea as to the identity or character of the persons H
entering their countries. It follows from the scheme that such
I I
persons must live and work in those countries illegally.
J J
77. I have considered everything that has been said in
K mitigation and I have considered all the facts that have been K
placed before me, including the various letters that have been
L submitted to the court. L
M 78. As regards the 1st defendant, on Charge 1 and Charge 3, M
I take a starting point for those offences of 3 years’
N N
imprisonment.
O O
79. She will be given credit for her guilty pleas and those
P sentences will be reduced to 2 years’ imprisonment, and I order P
that such sentences will run concurrently.
Q Q
80. I adopt the same starting point for the 2nd defendant
R R
and I allow the reduction for his guilty plea.
S S
81. However, in addition, I accept what has been said in
T mitigation, that the defendant initially was not aware that he T
was being involved in an illegal scheme, and that only became
U clear when he got to Shenzhen and saw the Malaysian visa attached U
V CRT36/7.1.2011/ML 12 DCCC732/2010/Sentence V
A A
to his passport. However, thereafter, he agreed to continue with
the scheme.
B B
C 82. I have decided to reduce his sentence by one of C
3 months, and so the sentence for each of his offences will be
D 1 year and 9 months; both sentences to run concurrently. D
E E
83. The 3rd defendant is the most culpable of the persons
appearing before this court. He may not be the mastermind of
F F
this scheme, but he is not far behind the mastermind. It was he
G that came down from Korea with D4 and D5. It was he that G
arranged for their Sydney boarding passes to be taken from them
H and supplied to D1 and D2, and it was he that was going down to H
Sydney together with D1 and D2.
I I
84. I take a starting point in his case of 4½ years’
J J
imprisonment.
K K
85. The only mitigation is his guilty plea.
L L
86. He will be given full credit for that, so the sentence
M imposed upon him will be a sentence of 3 years’ imprisonment. M
N N
87. I convicted D4 and D5 after trial. I was satisfied
that they came to Hong Kong as part of this conspiracy and they
O O
became aware that boarding passes were to be supplied to third
P parties to enable them to travel illegally to Australia. P
Q 88. In my view, their culpability is not as high as that of Q
D3, and I, therefore, take a starting point of 4 years’
R R
imprisonment in respect of their offences.
S S
89. As far as the 4th defendant is concerned, none of the
T matters that have been urged upon me in mitigation would allow me T
to reduce that sentence.
U U
V CRT36/7.1.2011/ML 13 DCCC732/2010/Sentence V
A A
90. She was convicted after trial, she will go to prison
for 4 years.
B B
C 91. As regards the 5th defendant, the only mitigating C
feature, as far as he is concerned, is the report which I have
D received from the West Kowloon Psychiatric Centre, and which I D
accept. The psychiatrist opined that he will have a more
E E
difficult time in custody than other defendants. To some extent,
that is perhaps something he should have taken into account when
F F
he was originally persuaded to go along with this conspiracy.
G G
92. However, in his case, I have decided to reduce the
H sentence by 4 months, to a sentence of 3 years and H
8 months.
I I
J J
K
Browne K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V CRT36/7.1.2011/ML 14 DCCC732/2010/Sentence V