DCCC353/2012 HKSAR v. WANG QUANFA AND ANOTHER - LawHero
DCCC353/2012
HKSAR v. WANG QUANFA AND ANOTHER
區域法院（刑事）HH Judge E. Yip4/7/2012
DCCC353/2012
由此
A A
B DCCC 353/2012 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 353 OF 2012
E E
----------------------------------------
F HKSAR F
v.
G G
WANG Quanfa (D1)
H TAN Raymond Tamayo (D2) H
----------------------------------------
I I
J Before: HH Judge E. Yip J
Date: 5 July 2012 at 9:42 am
K K
Present: Mr A.M. OMAR, Counsel on Fiat, for HKSAR
L Mr Kevin EGAN, instructed by M/s Oldham Li & Nie for D1 L
Mr CHONG Ling Wan, of M/s Chong & Partners for D2
M M
Offence: (3) Using a forged travel document for the purpose of Part II
N of the Immigration Ordinance（為施行《入境條例》第 II N
O
部而使用偽造的旅行證件） O
(4) Making a false representation to an Immigration Assistant
P P
lawfully acting under or in the execution of Part II of the
Q Immigration Ordinance（向根據或為執行《入境條例》第 Q
II 部而合法行事的入境事務助理員作出虛假申述）
R R
(5) Conspiracy to obtain services by deception（串謀以欺騙
S S
手段取得服務）
T T
U U
V V
由此
- 2 -
A A
B ---------------------------- B
Reasons for Sentence
C C
----------------------------
D D
Charges
E E
F 1. D1 is a Chinese national. D2 is a Philippine national. D1 F
departed Hong Kong for Manila by using a forged Philippine passport (3rd
G G
Charge), and making a false representation of its contents to the
H Immigration Assistant (4th Charge). They had also conspired with others H
to obtain air travel services by falsely representing to the airline staff that
I I
D1 was the genuine holder of a Philippine passport (5th Charge). D2, who
J could speak English and the Philippine dialect, assisted D1 in each charge. J
K K
2. Forensic examination confirmed that the said passport was
L forged by way of bio-data substitution. L
M M
3. Cautioned interview revealed, among others, that D1 was
N N
born in Mainland China in 1973. He was to establish some business in the
O
Philippines. He got the forged passport and used it to travel to Hong Kong O
with the English and Philippine dialect interpretation provided by D2.
P P
Q 4. Cautioned interview revealed, among others, that D2 was Q
recruited as an interpreter to assist D1 to travel with a forged passport. The
R R
reward was free accommodation in Hong Kong.
S S
T T
U U
V V
由此
- 3 -
A A
B Personal background and mitigation B
C C
5. D1 was born in Mainland China in 1973. He is now 39 years
D D
of age. He has a clear record. He is married with a child. As many of his
E clansmen had been doing well in Manila, he wanted to set up a lawful E
business there. He was told he had to acquire a lawful passport first.
F F
G 6. He was introduced through friends to a “Nancy”, who G
purported to be the wife of a high official at the Ministry of Foreign Affairs.
H H
She told him that he could buy an official Philippine passport. He had
I already paid RMB¥210,000 to her. Another and a last sum of I
RMB¥50,000 would be due. The processing of his application was
J J
seemingly official. In order to eventually verify its claimed authenticity,
K he was to use it to make a round trip to Hong Kong. When he departed K
from Manila, he was conducted through a special immigration counter not
L L
meant for the general public. He then realized it was a forged passport.
M The 33 hours he spent in Hong Kong was for the sole purpose of testing the M
passport.
N N
O 7. His counsel, Mr Egan, accepts that although it sounds O
somewhat strange for D1 to believe that having a Philippine passport
P P
would help set up a business in Manila, those are his instructions for the
Q purpose of mitigation. Q
R R
8. D2 was born in the Philippines. He is now 22 years of age.
S He has a clear record. He received primary education first in Mainland S
China and then again in the Philippines. At the age of 17 or 18, he helped
T T
his parents run the vegetable market. The overall income was about
U U
V V
由此
- 4 -
A A
B HK$3,000 per month. His friend, “Nancy”, offered him a free trip if he B
would act as D1’s interpreter in the latter’s trip. This was his first-ever
C C
visit to Hong Kong.
D D
Sentencing considerations
E E
F F
9. From the cases I have come across and those handed up by the
G prosecution and the defence, a number of features can be observed as G
hereinbelow.
H H
I Range of sentences for the 2 immigration offences I
J J
10. In HKSAR v. Ozcetin Nurdan HCMA 111/2009, the
K defendant was a Turkish national who entered Hong Kong as a visitor with K
a forged passport (2nd charge). In Hong Kong, she stole a diamond bracelet
L L
(1st Charge). Her appeal against the sentence of 15 months on a plea for the
M 2nd charge was dismissed. M
N N
11. In HKSAR v. Luo Xiuhong CACC 339/2010, the defendant
O possessed a forged passport to assist her credit card fraud. There was no O
appeal against the possession sentence of 12 months on a plea.
P P
Q 12. In HKSAR v. Pak Wan Lung CACC 573/98, the defendant Q
pleaded guilty to the pairs of making false representation to the
R R
immigration and using a forged travel document upon arrival and
S departure. An overall starting point of 27 months was adopted by the S
Court of Appeal.
T T
U U
V V
由此
- 5 -
A A
B 13. In HKSAR v. Pahila [2007] 1 HKLRD 410, after reviewing B
the authorities, McMahon J said that there was little logic in distinguishing
C C
levels of sentence for the offences of making a false representation to the
D immigration and the use of a false passport to enter Hong Kong. Each D
justified a sentence of up to 18 months on a plea.
E E
F 14. In HKSAR v. Stojanovic Milka CACC 110/2010, the F
defendant made a false representation to the immigration (2 nd charge) and
G G
rd
used a forged passport (3 charge) in order to enter Hong Kong to traffic in
H “Ice” (1st charge). There was no appeal against the sentence of 12 months H
each for the immigration charges on a plea.
I I
J Range of sentences for the air service fraud J
K K
15. In HKSAR v. Ye Ying HCMA 184/2003, the defendant
L L
attempted to obtain air services by using another person’s boarding pass.
M
Jackson J stressed it was an attempted offence and reduced the starting M
point from 18 months to 12 months.
N N
O 16. In HKSAR v. He Wenyou (何文油) [2009] 3 HKLRD 440, the O
defendant was an illegal immigrant from Mainland China. He made a false
P P
representation to the immigration when entering Hong Kong as to his final
Q destination. He also obtained air services by using somebody else’s Q
boarding pass. The Court of Appeal adopted 27 months and 32 months
R R
respectively as the starting points.
S S
T T
U U
V V
由此
- 6 -
A A
B Sentence of user versus executor for syndicate B
C C
17. In He Wenyou (何文油)(above), Cheung JA commented on
D the culpability of the user versus the executor for the syndicate in the D
following terms:
E E
F F
15. In our judgment, although the applicant took part in this
illegal immigration scheme, there should be some difference
G G
between the culpability of those who plotted or carried out the
scheme and that of the illegal immigrants who took part in the
H scheme. What usually happens is that someone plots a scheme, H
and then solicits those who want to be smuggled to a foreign
country to join the scheme, and then assists them to illegally
I enter that country. As the illegal immigrants only do what the I
mastermind instructs them to do, we consider that the
J mastermind or those who carry out the scheme should be more J
culpable. Such a difference has in fact been demonstrated in the
aforesaid two Court of Appeal cases. In [HKSAR v. Cheng
K Kwong Chung & Others CACC 536/2001], D7 was an illegal K
immigrant, whereas D2 and D4 were those who carried out the
L
illegal immigration scheme and assisted D7 therein. The trial L
judge adopted 3 years' imprisonment as the starting point for
these two defendants’ conspiracy charges. In [HKSAR v. Hung
M Kong Nam CACC 346/2006], the defendants were both M
responsible for carrying out the illegal operation, and the trial
judge adopted 3 years’ imprisonment and 3½ years’
N N
imprisonment as the respective starting points for their
conspiracy charges.
O O
Present sentences
P P
Q 18. As regards D1, I take 27 months each as the starting point for Q
the immigration offences (3rd and 4th Charges) and 21 months for the air
R R
service offence (5th Charge). Given the pleas of guilty, the sentences shall
S be 18 months and 14 months respectively. There are no other mitigating S
factors. I order the sentences to be served concurrently. The overall length
T T
shall be 18 months.
U U
V V
由此
- 7 -
A A
B B
19. According to He Wenyou ( 何文油 )(above), D2 being an
C C
executor of the scheme shall face a higher sentence. I take 33 months each
D as the starting point for the immigration offences (3rd and 4th Charges) and D
27 months for the air service offence (5th Charge). Given the pleas of
E E
guilty, the sentences shall be 22 months and 18 months respectively. There
F F
are no other mitigating factors. I order the sentences to be served
G
concurrently. The overall length shall be 22 months. G
H H
I I
J J
K K
L L
( E. Yip )
District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
由此
A A
B DCCC 353/2012 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 353 OF 2012
E E
----------------------------------------
F HKSAR F
v.
G G
WANG Quanfa (D1)
H TAN Raymond Tamayo (D2) H
----------------------------------------
I I
J Before: HH Judge E. Yip J
Date: 5 July 2012 at 9:42 am
K K
Present: Mr A.M. OMAR, Counsel on Fiat, for HKSAR
L Mr Kevin EGAN, instructed by M/s Oldham Li & Nie for D1 L
Mr CHONG Ling Wan, of M/s Chong & Partners for D2
M M
Offence: (3) Using a forged travel document for the purpose of Part II
N of the Immigration Ordinance（為施行《入境條例》第 II N
O
部而使用偽造的旅行證件） O
(4) Making a false representation to an Immigration Assistant
P P
lawfully acting under or in the execution of Part II of the
Q Immigration Ordinance（向根據或為執行《入境條例》第 Q
II 部而合法行事的入境事務助理員作出虛假申述）
R R
(5) Conspiracy to obtain services by deception（串謀以欺騙
S S
手段取得服務）
T T
U U
V V
由此
- 2 -
A A
B ---------------------------- B
Reasons for Sentence
C C
----------------------------
D D
Charges
E E
F 1. D1 is a Chinese national. D2 is a Philippine national. D1 F
departed Hong Kong for Manila by using a forged Philippine passport (3rd
G G
Charge), and making a false representation of its contents to the
H Immigration Assistant (4th Charge). They had also conspired with others H
to obtain air travel services by falsely representing to the airline staff that
I I
D1 was the genuine holder of a Philippine passport (5th Charge). D2, who
J could speak English and the Philippine dialect, assisted D1 in each charge. J
K K
2. Forensic examination confirmed that the said passport was
L forged by way of bio-data substitution. L
M M
3. Cautioned interview revealed, among others, that D1 was
N N
born in Mainland China in 1973. He was to establish some business in the
O
Philippines. He got the forged passport and used it to travel to Hong Kong O
with the English and Philippine dialect interpretation provided by D2.
P P
Q 4. Cautioned interview revealed, among others, that D2 was Q
recruited as an interpreter to assist D1 to travel with a forged passport. The
R R
reward was free accommodation in Hong Kong.
S S
T T
U U
V V
由此
- 3 -
A A
B Personal background and mitigation B
C C
5. D1 was born in Mainland China in 1973. He is now 39 years
D D
of age. He has a clear record. He is married with a child. As many of his
E clansmen had been doing well in Manila, he wanted to set up a lawful E
business there. He was told he had to acquire a lawful passport first.
F F
G 6. He was introduced through friends to a “Nancy”, who G
purported to be the wife of a high official at the Ministry of Foreign Affairs.
H H
She told him that he could buy an official Philippine passport. He had
I already paid RMB¥210,000 to her. Another and a last sum of I
RMB¥50,000 would be due. The processing of his application was
J J
seemingly official. In order to eventually verify its claimed authenticity,
K he was to use it to make a round trip to Hong Kong. When he departed K
from Manila, he was conducted through a special immigration counter not
L L
meant for the general public. He then realized it was a forged passport.
M The 33 hours he spent in Hong Kong was for the sole purpose of testing the M
passport.
N N
O 7. His counsel, Mr Egan, accepts that although it sounds O
somewhat strange for D1 to believe that having a Philippine passport
P P
would help set up a business in Manila, those are his instructions for the
Q purpose of mitigation. Q
R R
8. D2 was born in the Philippines. He is now 22 years of age.
S He has a clear record. He received primary education first in Mainland S
China and then again in the Philippines. At the age of 17 or 18, he helped
T T
his parents run the vegetable market. The overall income was about
U U
V V
由此
- 4 -
A A
B HK$3,000 per month. His friend, “Nancy”, offered him a free trip if he B
would act as D1’s interpreter in the latter’s trip. This was his first-ever
C C
visit to Hong Kong.
D D
Sentencing considerations
E E
F F
9. From the cases I have come across and those handed up by the
G prosecution and the defence, a number of features can be observed as G
hereinbelow.
H H
I Range of sentences for the 2 immigration offences I
J J
10. In HKSAR v. Ozcetin Nurdan HCMA 111/2009, the
K defendant was a Turkish national who entered Hong Kong as a visitor with K
a forged passport (2nd charge). In Hong Kong, she stole a diamond bracelet
L L
(1st Charge). Her appeal against the sentence of 15 months on a plea for the
M 2nd charge was dismissed. M
N N
11. In HKSAR v. Luo Xiuhong CACC 339/2010, the defendant
O possessed a forged passport to assist her credit card fraud. There was no O
appeal against the possession sentence of 12 months on a plea.
P P
Q 12. In HKSAR v. Pak Wan Lung CACC 573/98, the defendant Q
pleaded guilty to the pairs of making false representation to the
R R
immigration and using a forged travel document upon arrival and
S departure. An overall starting point of 27 months was adopted by the S
Court of Appeal.
T T
U U
V V
由此
- 5 -
A A
B 13. In HKSAR v. Pahila [2007] 1 HKLRD 410, after reviewing B
the authorities, McMahon J said that there was little logic in distinguishing
C C
levels of sentence for the offences of making a false representation to the
D immigration and the use of a false passport to enter Hong Kong. Each D
justified a sentence of up to 18 months on a plea.
E E
F 14. In HKSAR v. Stojanovic Milka CACC 110/2010, the F
defendant made a false representation to the immigration (2 nd charge) and
G G
rd
used a forged passport (3 charge) in order to enter Hong Kong to traffic in
H “Ice” (1st charge). There was no appeal against the sentence of 12 months H
each for the immigration charges on a plea.
I I
J Range of sentences for the air service fraud J
K K
15. In HKSAR v. Ye Ying HCMA 184/2003, the defendant
L L
attempted to obtain air services by using another person’s boarding pass.
M
Jackson J stressed it was an attempted offence and reduced the starting M
point from 18 months to 12 months.
N N
O 16. In HKSAR v. He Wenyou (何文油) [2009] 3 HKLRD 440, the O
defendant was an illegal immigrant from Mainland China. He made a false
P P
representation to the immigration when entering Hong Kong as to his final
Q destination. He also obtained air services by using somebody else’s Q
boarding pass. The Court of Appeal adopted 27 months and 32 months
R R
respectively as the starting points.
S S
T T
U U
V V
由此
- 6 -
A A
B Sentence of user versus executor for syndicate B
C C
17. In He Wenyou (何文油)(above), Cheung JA commented on
D the culpability of the user versus the executor for the syndicate in the D
following terms:
E E
F F
15. In our judgment, although the applicant took part in this
illegal immigration scheme, there should be some difference
G G
between the culpability of those who plotted or carried out the
scheme and that of the illegal immigrants who took part in the
H scheme. What usually happens is that someone plots a scheme, H
and then solicits those who want to be smuggled to a foreign
country to join the scheme, and then assists them to illegally
I enter that country. As the illegal immigrants only do what the I
mastermind instructs them to do, we consider that the
J mastermind or those who carry out the scheme should be more J
culpable. Such a difference has in fact been demonstrated in the
aforesaid two Court of Appeal cases. In [HKSAR v. Cheng
K Kwong Chung & Others CACC 536/2001], D7 was an illegal K
immigrant, whereas D2 and D4 were those who carried out the
L
illegal immigration scheme and assisted D7 therein. The trial L
judge adopted 3 years' imprisonment as the starting point for
these two defendants’ conspiracy charges. In [HKSAR v. Hung
M Kong Nam CACC 346/2006], the defendants were both M
responsible for carrying out the illegal operation, and the trial
judge adopted 3 years’ imprisonment and 3½ years’
N N
imprisonment as the respective starting points for their
conspiracy charges.
O O
Present sentences
P P
Q 18. As regards D1, I take 27 months each as the starting point for Q
the immigration offences (3rd and 4th Charges) and 21 months for the air
R R
service offence (5th Charge). Given the pleas of guilty, the sentences shall
S be 18 months and 14 months respectively. There are no other mitigating S
factors. I order the sentences to be served concurrently. The overall length
T T
shall be 18 months.
U U
V V
由此
- 7 -
A A
B B
19. According to He Wenyou ( 何文油 )(above), D2 being an
C C
executor of the scheme shall face a higher sentence. I take 33 months each
D as the starting point for the immigration offences (3rd and 4th Charges) and D
27 months for the air service offence (5th Charge). Given the pleas of
E E
guilty, the sentences shall be 22 months and 18 months respectively. There
F F
are no other mitigating factors. I order the sentences to be served
G
concurrently. The overall length shall be 22 months. G
H H
I I
J J
K K
L L
( E. Yip )
District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V