A A
DCCC814/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 814 OF 2012
C C
----------------------
D D
HKSAR
E v. E
Yan An (D1)
F Yang Liang (D2) F
Lin Suxia (D3)
G Huang Yanwei (D4) G
Huang Fang (D5)
H ---------------------- H
Before: H H Judge S. D’Almada Remedios
I Date: 26 November 2012 at 9.38 am I
Present: Ms Irene Poon Oi-lin, PP of the Department of Justice,
J for HKSAR J
Mr Lo Pui-yin, instructed by Messrs Li, Wong, Lam & W
I Cheung, assigned by the Director of Legal Aid, for
K the 1st Defendant K
Mr Li Chung-yin, Tony, instructed by Messrs Hampton,
Winter & Glynn, assigned by the Director of Legal Aid,
L L
for the 2nd and 3rd Defendants
Mr Victor Chi-fai Cheung, instructed by Messrs Chong &
M Yen, assigned by the Director of Legal Aid, for the M
4th and 5th Defendants
Offence: (1) Conspiracy to obtain services by deception (串謀以
N 欺騙手段取得服務) N
(2) to (6) Making a false representation to an
O Immigration Assistant lawfully acting under or in O
the execution of Part II of the Immigration
Ordinance (向根據或為執行《入境條例》第II部而合法行事的入
P 境事務助理員作出虛假陳述) P
(7) Possession of forged travel documents (管有偽造的旅
Q 行證件) Q
---------------------
R R
Reasons for Sentence
S S
---------------------
T T
1. D1 to D5, you have pleaded guilty to the 1st charge of
U conspiracy to obtain services by deception, contrary to section U
CRT33/26.11.2012/SY 1 DCCC814/2012/Sentence
V V
A A
18A of the Theft Ordinance and sections 159A and C of the Crimes
Ordinance.
B B
C 2. That charge was that between 1 February 2012 and 10 C
July 2012, in Hong Kong and elsewhere, you conspired together
D and with persons unknown including two persons by the name of Lo D
Chan and Lo Lam to dishonestly obtain the services of Emirates
E E
Airlines Limited on 11 July 2012 from Hong Kong to Dubai and
then from Dubai to Sao Paulo. You deceived Emirates Airlines by
F F
falsely representing that each one of you were taking the
G flights en route to go to Paraguay for training in a hospital G
when in fact your intention was eventually to enter Argentina
H illegally for economic reasons. H
I I
3. Each one of you have been charged with one similar
offence of making a false representation to an immigration
J J
assistant lawfully acting under the execution of Part II of the
K
Immigration Ordinance, contrary to section 42(1)(a) of the K
Immigration Ordinance.
L L
4. The offences all took place on the same date, the 10
M July, at the Arrival Hall of Lok Ma Chau Control Point, New M
Territories, in Hong Kong, whereby each one of you made a false
N N
representation to an immigration officer representing that you
were coming to Hong Kong to transit to go to Bali. You in fact
O O
had every intention to go ultimately to Argentina illegally.
P P
5. The 1st defendant, you have a further charge of
Q possession on 10 July of forged travel documents which were five Q
forged passports. They were one Japanese passport and four HKSAR
R R
passports.
S S
6. D1 you have pleaded guilty to Charges 1, 2 and 7; D2,
T Charge 1 and 3; D3, Charge 1 and 4; D4, Charges 1 and 5; and D5, T
Charges 1 and 6.
U U
CRT33/26.11.2012/SY 2 DCCC814/2012/Sentence
V V
A A
7. Defendants, you yourselves and other parties were
parties to a conspiracy in charge 1. Those persons had arranged
B B
for you defendants to travel on Emirates Airlines to your
C eventual destination of Argentina. Months before, that is C
starting from February 2012, you were asked by those arranging
D the illegal entry into Argentina to give your passports and D
photographs for the necessary arrangements.
E E
8. You are all mainlanders from China and from various
F F
provinces. Sometime in early July you were told by the arranger
G to go to Shenzhen. Once in Shenzhen you were told to wait until G
arrangements had been completed and one person by the name of Lo
H Lam, who was a co-conspirator charged in this indictment, H
instructed you all to go to a hotel in Shenzhen on 10 July 2012.
I I
9. D1 to D5, you then all met and were introduced to each
J J
other there. Lo Lam then distributed air tickets to each of you,
K
for your trips to Bali. He then coached each of you to present K
them on your arrival in Hong Kong for clearance and that you
L should say that you were in transit in Hong Kong to go to Bali L
for sightseeing.
M M
10. On that day you all presented your genuine People’s
N N
Republic of China passports and the air tickets for Bali for
clearance and falsely represented to the immigration officers
O O
that you were going there for holiday. This occurred at the Lok
P Ma Chau Control Point. P
Q 11. Save for D1 who was permitted to enter, D2 to D5, you Q
were refused entry to Hong Kong. D2 to D5 then met with Ah Lam
R R
in China and he gave you all papers and airline tickets to go to
Paraguay. Thereafter you came to Hong Kong by ferry from the
S S
Shekou Control Point to Hong Kong Airport on the same day, that
T is 10 July 2012. Inside the transit area of the restricted zone T
in the Hong Kong Airport where no permission to land in Hong
U Kong is required, D2 to D5, you approached the airline staff at U
CRT33/26.11.2012/SY 3 DCCC814/2012/Sentence
V V
A A
the check-in counter of Emirates Airline, produced your genuine
PRC passports and genuine e-tickets which showed your eventual
B B
destination to be Paraguay via Dubai and Brazil. Each of you
C misrepresented to the airline staff that you were going to C
Paraguay for training in a hospital while in fact you intended
D to sneak into Argentina illegally for employment. You were each D
given your boarding passes to the respective flights to Sao
E E
Paulo, Brazil, via Dubai. Your eventual flight to Paraguay was
not however via Emirates Airlines Limited.
F F
G 12. On the other hand, D1, you having entered Hong Kong, G
went to Hong Kong Airport and approached the airline staff at
H the check-in counter of Emirates Airlines Limited outside the H
restricted zone. You produced your genuine PRC passport and e-
I I
ticket which showed again the eventual destination to be
Paraguay. You also misrepresented to the airline staff that you
J J
were going to Paraguay for training while in fact you had
K
intended to sneak into Argentina illegally for establishing a K
supermarket business.
L L
13. The airline staff found you to be suspicious. They
M then called the immigration officers to the airline counter M
which was outside the restricted zone whereupon the immigration
N N
officers found a forged Japanese passport in the name of
Tomohisa Yamashita bearing your, D1’s photo and four forged
O O
HKSAR passports bearing the real names of D2 to D5 and
P photographs of D2 to D5. These forged passports were hidden in P
the sleeve of a synthetic leather covered notebook which was
Q found in D1’s hand carry luggage. Subsequently, D2 to D5, you Q
were all arrested at the boarding gate of the flight which you
R R
were about to board to Dubai.
S S
14. The airline staff at the check-in counter of Emirates
T Airlines Limited stated that if D1 to D5 really flew to T
Paraguay, should they have known that you all intended to sneak
U into Argentina illegally instead of going to Paraguay for U
CRT33/26.11.2012/SY 4 DCCC814/2012/Sentence
V V
A A
training in a hospital, they would not have allowed you all to
board the aeroplane en route to Paraguay.
B B
C 15. D1 to D5, you all have counsel representing you. Mr P C
Y Lo, counsel, represents the 1st defendant; Mr Tony Li
D represents you, the 2nd and 3rd defendants; and Mr Victor Cheung D
represents you, the 4th and 5th defendants.
E E
16. Your counsel have all made a full and thorough
F F
mitigation on your behalf and I have also taken into account the
G various cases that have been placed before me when considering G
the appropriate sentence to be passed upon you.
H H
17. Common to you all defendants is the following. All of
I I
you defendants are of clear record. You all came from Mainland
China with the objective to leave Mainland China to enter into
J J
Argentina illegally either for employment or for setting up a
K
business. The reason for you going to Argentina was because of K
the difficult financial constraints that you had in your
L homeland, mainland China. You have all pleaded guilty and L
written me letters telling me your remorse for committing these
M offences. M
N N
18. I have also had set out to me your various personal
difficulties faced by you at home, the reasons why you committed
O O
these offences. I shall not reiterate those but I have taken
P those into account. P
Q 19. As for D1, you are aged 30 and married with a 2-year- Q
old daughter. You had worked in Italy before in a factory from
R R
2006 until you returned to China in 2011. At the time of the
offence you were unemployed.
S S
T 20. Mr Lo has informed me that you were given the false T
passports not to be used all by yourself but obviously for
U U
CRT33/26.11.2012/SY 5 DCCC814/2012/Sentence
V V
A A
carrying for the other defendants for the purposes of illegally
entering another country which would be Argentina.
B B
C 21. D1, the passport in which your photo was attached to C
was in a different name while all the other passports were in
D the names of the other defendants. You were entrusted, you say, D
with these passports for the purposes of giving then to one Ah
E E
Kiu in Paraguay, you, however, were not part of a syndicate but
was only a courier and you were informed by Ah Lam that he did
F F
not trust the other defendants as they were younger persons. He
G therefore gave the passports to you to look after and also G
considering the fact that you yourself had been outside mainland
H before. H
I I
22. As for D2 and D3, you are a married couple and you
have a 3-year-old daughter. D2, you are 27 years of age and you
J J
have said that had you been successful in entering Argentina,
K
you would have had to pay 100,000 RMB to those making the K
arrangement. As for D3, you are 23 years of age and in view of
L the lack of opportunity for work where you lived, you decided to L
follow your husband.
M M
23. D4 and D5, you are the youngest of the defendants who
N N
are co-habitants and are girlfriend/boyfriend. D5, you are
actually pregnant with D4’s child. D4, you are 19 years of age
O O
and the reason why you wanted to go to Argentina is because your
P father is already working in Argentina and employment is P
lucrative, therefore, you yourself decided to look for
Q employment there. D5, you are 20 years of age and for the same Q
purposes wish to go to Argentina.
R R
24. The most recent case on obtaining services by
S S
deception in this type of scheme where persons are being
T trafficked to other countries and making use of Hong Kong’s T
position as a hub of communication to assist illegal immigrants
U to enter third countries is in HKSAR v Lee Shinwon [2012] 1 U
CRT33/26.11.2012/SY 6 DCCC814/2012/Sentence
V V
A A
HKLRD 283. The judgment of that case was handed down on 14
November 2011. That case also referred to other similar cases,
B B
and cited in the judgment was that of HKSAR v Cheng Kwong Chung
C CACC536/2001, HKSAR v He Wen You [2009] 3 HKLRD 445 and HKSAR v C
Hung Kong Nam CACC346/2006 and HKSAR v Yim Kim Ping CACC67/2009.
D D
25. It was set out clearly in Lee Shinwon that the
E E
sentencing goal for human trafficking was deterrence. Such
offences involved sophisticated planning and arrangements to
F F
assist illegal immigrants to enter a third country using false
G documents. These activities tarnished Hong Kong’s international G
reputation and undermined the laws of Hong Kong and other
H jurisdictions which had a mutual responsibility to punish and H
deter those being trafficked. Thus, the sentences must be
I I
sufficiently severe to the persons who might be approached to
assist in such schemes to realize the seriousness of the crime
J J
and the consequences to them if detected.
K K
26. The court there referred to the cases I have referred
L to earlier, Cheng Kwong Chung, He Wen You and Yim Kim Ping. It L
was also necessary, it was held, to distinguish between the
M culpability of the persons being trafficked and those M
organizing, assisting in and profiting from the trafficking, and
N N
to achieve consistency in sentencing criminal conduct, the
factual matrix must be closely similar to the Court of Appeal
O O
authorities.
P P
27. It went on to hold no further discount for good
Q character was warranted, the one-third discount from plea Q
included allowance for good character. Previous good character
R R
normally counted for little for offences which required severe
deterrent sentences and there was no benchmark starting point.
S S
T 28. In the case of He Wen You, the defendant, a holder of T
a genuine PRC passport, checked in for a flight to Bangkok, went
U through the departure examination procedures at the airport to U
CRT33/26.11.2012/SY 7 DCCC814/2012/Sentence
V V
A A
go to Bangkok. He then queued up at the boarding gate for a
flight bound for Rome, Italy, holding a boarding pass for a
B B
different named customer. He was intercepted and he was charged
C for making a false representation to an immigration assistant, C
namely he was leaving Hong Kong for Thailand, and for obtaining
D services, namely the services of the flight to Rome, Italy, by D
deception by falsely representing that he was the person whose
E E
name was on the boarding pass.
F F
29. The Court of Appeal in that case held that the proper
G starting point for the person being trafficked, that is similar G
to all five of you here, for the false representation offence,
H that is falsely saying you were leaving Hong Kong for a H
destination when in fact you were not going to that destination
I I
was a starting point of 27 months after trial. For obtaining
services by deception, namely that in that case he was falsely
J J
representing he was the person on the boarding pass to the
K
airline was one of a starting point of 32 months imprisonment K
after trial.
L L
30. I bear in mind here that in your particular cases that
M the facts of the case show a misrepresentation not as to M
identity, but for the purposes of travel. All of you had used
N N
your genuine PRC passports, but falsely represented your real or
actual intentions. Nevertheless, the purpose or goal of your
O O
using Hong Kong and leaving Hong Kong was to go to Argentina
P illegally. P
Q 31. I must, as a sentencing court, be aware of the matters Q
referred to earlier and in Lee Shinwon as to the policy
R R
involved, considerations and the comity of nations’
considerations. It is clear that this type of offences involve
S S
exploitation of you people from mainland for substantial sums as
T was evident by D2 in having to pay over 100,000 Renminbi if he T
were to be successful in entering Argentina.
U U
CRT33/26.11.2012/SY 8 DCCC814/2012/Sentence
V V
A A
32. I am aware that these offences deliberately seek not
only to undermine Hong Kong laws but also the immigration laws
B B
of other jurisdictions. As a result, these activities would
C tarnish Hong Kong’s international reputation. Further, as a C
result of these activities, immigration authorities of foreign
D countries become wary of visitors from Hong Kong even when they D
are holding lawful travel documents which means that visitors
E E
from Hong Kong will have to suffer a certain degree of
inconvenience when they enter those countries.
F F
G 33. The comity of nations’ consideration applies where G
mutual responsibility should be shared by all nations to punish
H and deter those who tried to cross international borders with H
false travel documents.
I I
34. D4 and D5, although you are under 21 and the court may
J J
consider whether there are other more appropriate sentences
K
other than imprisonment, it is my view that in view of the K
seriousness of this offence and the deterrence set down by the
L Court of Appeal that the only appropriate sentence to you both L
is one of a sentence of imprisonment.
M M
35. For D1, you have a further charge of possessing five
N N
false passports, I have been assisted by reference to the case
of HKSAR v Ma Yuen Chi CACC537/2005, the date of judgment being
O O
14 June 2006. In that case the court accepted that a sentence of
P 5 years’ imprisonment after trial was appropriate for the P
possession of 11 forged passports. In that case, a courier was
Q found carrying a large number of false passports. It was said in Q
that case there was no mitigating factor other than the plea to
R R
which the applicant had been given the one-third discount.
S S
36. I accept in your case you did not have 11 passports
T but had five. I also accept there is no evidence of you working T
for a syndicate. The offence relating to false passports is
U again a very serious offence as there is an obvious U
CRT33/26.11.2012/SY 9 DCCC814/2012/Sentence
V V
A A
international dimension to them. There are obviously various
methods to which people use to smuggle people in to different
B B
countries and that was clearly evident in this case as to how
C these passports were to be used by you all to eventually enter C
into Argentina.
D D
37. I am of course fully aware that D2 to D5 were not in
E E
possession of these passports and there was no evidence before
me that they knew of these forged passports.
F F
G 38. On this basis and taking into consideration the G
sentences as previously passed in the other cases and the cases
H that I have cited, defendants, you should be sentenced to the H
following terms of imprisonment.
I I
39. For Charge 1, I take a starting point of 33 months’
J J
imprisonment had I convicted you after trial, and giving you all
K
full credit for your plea of guilty, I reduce that term to one K
of 22 months’ imprisonment.
L L
40. For the offences which you are all individually
M charged with Charges 2 to 6, of making a false representation to M
an immigration officer, that is D1, Charge 2, D2, Charge 3, D3,
N N
Charge 4, D4, Charge 5, D5, Charge 6, I take a starting point of
27 months’ imprisonment had I convicted you after trial and
O O
reduce that term to 18 months’ imprisonment.
P P
41. For D1, on Charge 7, I shall take a starting point of
Q 42 months’ imprisonment and giving you full credit for your plea Q
of guilty, I reduce that term to 28 months’ imprisonment.
R R
42. For D2 to D5, those terms of imprisonment shall run
S S
concurrent to each other. That will make a total term of 1 year
T and 10 months’ imprisonment. T
U U
CRT33/26.11.2012/SY 10 DCCC814/2012/Sentence
V V
A A
43. For D1, Charges 1 and 2 shall run concurrent to each
other similar to the other defendants’ sentences. However,
B B
Charge 7 being a distinct and separate charge, that sentence
C shall be served partly consecutive and partly concurrent. 6 C
months shall run consecutive to the present term and the
D remaining terms are to run concurrent. You shall therefore serve D
a total term of 28 months’ imprisonment which is 2 years 4
E E
months’ imprisonment.
F F
G G
H H
(S. D’Almada Remedios)
I District Judge I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT33/26.11.2012/SY 11 DCCC814/2012/Sentence
V V
A A
DCCC814/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 814 OF 2012
C C
----------------------
D D
HKSAR
E v. E
Yan An (D1)
F Yang Liang (D2) F
Lin Suxia (D3)
G Huang Yanwei (D4) G
Huang Fang (D5)
H ---------------------- H
Before: H H Judge S. D’Almada Remedios
I Date: 26 November 2012 at 9.38 am I
Present: Ms Irene Poon Oi-lin, PP of the Department of Justice,
J for HKSAR J
Mr Lo Pui-yin, instructed by Messrs Li, Wong, Lam & W
I Cheung, assigned by the Director of Legal Aid, for
K the 1st Defendant K
Mr Li Chung-yin, Tony, instructed by Messrs Hampton,
Winter & Glynn, assigned by the Director of Legal Aid,
L L
for the 2nd and 3rd Defendants
Mr Victor Chi-fai Cheung, instructed by Messrs Chong &
M Yen, assigned by the Director of Legal Aid, for the M
4th and 5th Defendants
Offence: (1) Conspiracy to obtain services by deception (串謀以
N 欺騙手段取得服務) N
(2) to (6) Making a false representation to an
O Immigration Assistant lawfully acting under or in O
the execution of Part II of the Immigration
Ordinance (向根據或為執行《入境條例》第II部而合法行事的入
P 境事務助理員作出虛假陳述) P
(7) Possession of forged travel documents (管有偽造的旅
Q 行證件) Q
---------------------
R R
Reasons for Sentence
S S
---------------------
T T
1. D1 to D5, you have pleaded guilty to the 1st charge of
U conspiracy to obtain services by deception, contrary to section U
CRT33/26.11.2012/SY 1 DCCC814/2012/Sentence
V V
A A
18A of the Theft Ordinance and sections 159A and C of the Crimes
Ordinance.
B B
C 2. That charge was that between 1 February 2012 and 10 C
July 2012, in Hong Kong and elsewhere, you conspired together
D and with persons unknown including two persons by the name of Lo D
Chan and Lo Lam to dishonestly obtain the services of Emirates
E E
Airlines Limited on 11 July 2012 from Hong Kong to Dubai and
then from Dubai to Sao Paulo. You deceived Emirates Airlines by
F F
falsely representing that each one of you were taking the
G flights en route to go to Paraguay for training in a hospital G
when in fact your intention was eventually to enter Argentina
H illegally for economic reasons. H
I I
3. Each one of you have been charged with one similar
offence of making a false representation to an immigration
J J
assistant lawfully acting under the execution of Part II of the
K
Immigration Ordinance, contrary to section 42(1)(a) of the K
Immigration Ordinance.
L L
4. The offences all took place on the same date, the 10
M July, at the Arrival Hall of Lok Ma Chau Control Point, New M
Territories, in Hong Kong, whereby each one of you made a false
N N
representation to an immigration officer representing that you
were coming to Hong Kong to transit to go to Bali. You in fact
O O
had every intention to go ultimately to Argentina illegally.
P P
5. The 1st defendant, you have a further charge of
Q possession on 10 July of forged travel documents which were five Q
forged passports. They were one Japanese passport and four HKSAR
R R
passports.
S S
6. D1 you have pleaded guilty to Charges 1, 2 and 7; D2,
T Charge 1 and 3; D3, Charge 1 and 4; D4, Charges 1 and 5; and D5, T
Charges 1 and 6.
U U
CRT33/26.11.2012/SY 2 DCCC814/2012/Sentence
V V
A A
7. Defendants, you yourselves and other parties were
parties to a conspiracy in charge 1. Those persons had arranged
B B
for you defendants to travel on Emirates Airlines to your
C eventual destination of Argentina. Months before, that is C
starting from February 2012, you were asked by those arranging
D the illegal entry into Argentina to give your passports and D
photographs for the necessary arrangements.
E E
8. You are all mainlanders from China and from various
F F
provinces. Sometime in early July you were told by the arranger
G to go to Shenzhen. Once in Shenzhen you were told to wait until G
arrangements had been completed and one person by the name of Lo
H Lam, who was a co-conspirator charged in this indictment, H
instructed you all to go to a hotel in Shenzhen on 10 July 2012.
I I
9. D1 to D5, you then all met and were introduced to each
J J
other there. Lo Lam then distributed air tickets to each of you,
K
for your trips to Bali. He then coached each of you to present K
them on your arrival in Hong Kong for clearance and that you
L should say that you were in transit in Hong Kong to go to Bali L
for sightseeing.
M M
10. On that day you all presented your genuine People’s
N N
Republic of China passports and the air tickets for Bali for
clearance and falsely represented to the immigration officers
O O
that you were going there for holiday. This occurred at the Lok
P Ma Chau Control Point. P
Q 11. Save for D1 who was permitted to enter, D2 to D5, you Q
were refused entry to Hong Kong. D2 to D5 then met with Ah Lam
R R
in China and he gave you all papers and airline tickets to go to
Paraguay. Thereafter you came to Hong Kong by ferry from the
S S
Shekou Control Point to Hong Kong Airport on the same day, that
T is 10 July 2012. Inside the transit area of the restricted zone T
in the Hong Kong Airport where no permission to land in Hong
U Kong is required, D2 to D5, you approached the airline staff at U
CRT33/26.11.2012/SY 3 DCCC814/2012/Sentence
V V
A A
the check-in counter of Emirates Airline, produced your genuine
PRC passports and genuine e-tickets which showed your eventual
B B
destination to be Paraguay via Dubai and Brazil. Each of you
C misrepresented to the airline staff that you were going to C
Paraguay for training in a hospital while in fact you intended
D to sneak into Argentina illegally for employment. You were each D
given your boarding passes to the respective flights to Sao
E E
Paulo, Brazil, via Dubai. Your eventual flight to Paraguay was
not however via Emirates Airlines Limited.
F F
G 12. On the other hand, D1, you having entered Hong Kong, G
went to Hong Kong Airport and approached the airline staff at
H the check-in counter of Emirates Airlines Limited outside the H
restricted zone. You produced your genuine PRC passport and e-
I I
ticket which showed again the eventual destination to be
Paraguay. You also misrepresented to the airline staff that you
J J
were going to Paraguay for training while in fact you had
K
intended to sneak into Argentina illegally for establishing a K
supermarket business.
L L
13. The airline staff found you to be suspicious. They
M then called the immigration officers to the airline counter M
which was outside the restricted zone whereupon the immigration
N N
officers found a forged Japanese passport in the name of
Tomohisa Yamashita bearing your, D1’s photo and four forged
O O
HKSAR passports bearing the real names of D2 to D5 and
P photographs of D2 to D5. These forged passports were hidden in P
the sleeve of a synthetic leather covered notebook which was
Q found in D1’s hand carry luggage. Subsequently, D2 to D5, you Q
were all arrested at the boarding gate of the flight which you
R R
were about to board to Dubai.
S S
14. The airline staff at the check-in counter of Emirates
T Airlines Limited stated that if D1 to D5 really flew to T
Paraguay, should they have known that you all intended to sneak
U into Argentina illegally instead of going to Paraguay for U
CRT33/26.11.2012/SY 4 DCCC814/2012/Sentence
V V
A A
training in a hospital, they would not have allowed you all to
board the aeroplane en route to Paraguay.
B B
C 15. D1 to D5, you all have counsel representing you. Mr P C
Y Lo, counsel, represents the 1st defendant; Mr Tony Li
D represents you, the 2nd and 3rd defendants; and Mr Victor Cheung D
represents you, the 4th and 5th defendants.
E E
16. Your counsel have all made a full and thorough
F F
mitigation on your behalf and I have also taken into account the
G various cases that have been placed before me when considering G
the appropriate sentence to be passed upon you.
H H
17. Common to you all defendants is the following. All of
I I
you defendants are of clear record. You all came from Mainland
China with the objective to leave Mainland China to enter into
J J
Argentina illegally either for employment or for setting up a
K
business. The reason for you going to Argentina was because of K
the difficult financial constraints that you had in your
L homeland, mainland China. You have all pleaded guilty and L
written me letters telling me your remorse for committing these
M offences. M
N N
18. I have also had set out to me your various personal
difficulties faced by you at home, the reasons why you committed
O O
these offences. I shall not reiterate those but I have taken
P those into account. P
Q 19. As for D1, you are aged 30 and married with a 2-year- Q
old daughter. You had worked in Italy before in a factory from
R R
2006 until you returned to China in 2011. At the time of the
offence you were unemployed.
S S
T 20. Mr Lo has informed me that you were given the false T
passports not to be used all by yourself but obviously for
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A A
carrying for the other defendants for the purposes of illegally
entering another country which would be Argentina.
B B
C 21. D1, the passport in which your photo was attached to C
was in a different name while all the other passports were in
D the names of the other defendants. You were entrusted, you say, D
with these passports for the purposes of giving then to one Ah
E E
Kiu in Paraguay, you, however, were not part of a syndicate but
was only a courier and you were informed by Ah Lam that he did
F F
not trust the other defendants as they were younger persons. He
G therefore gave the passports to you to look after and also G
considering the fact that you yourself had been outside mainland
H before. H
I I
22. As for D2 and D3, you are a married couple and you
have a 3-year-old daughter. D2, you are 27 years of age and you
J J
have said that had you been successful in entering Argentina,
K
you would have had to pay 100,000 RMB to those making the K
arrangement. As for D3, you are 23 years of age and in view of
L the lack of opportunity for work where you lived, you decided to L
follow your husband.
M M
23. D4 and D5, you are the youngest of the defendants who
N N
are co-habitants and are girlfriend/boyfriend. D5, you are
actually pregnant with D4’s child. D4, you are 19 years of age
O O
and the reason why you wanted to go to Argentina is because your
P father is already working in Argentina and employment is P
lucrative, therefore, you yourself decided to look for
Q employment there. D5, you are 20 years of age and for the same Q
purposes wish to go to Argentina.
R R
24. The most recent case on obtaining services by
S S
deception in this type of scheme where persons are being
T trafficked to other countries and making use of Hong Kong’s T
position as a hub of communication to assist illegal immigrants
U to enter third countries is in HKSAR v Lee Shinwon [2012] 1 U
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A A
HKLRD 283. The judgment of that case was handed down on 14
November 2011. That case also referred to other similar cases,
B B
and cited in the judgment was that of HKSAR v Cheng Kwong Chung
C CACC536/2001, HKSAR v He Wen You [2009] 3 HKLRD 445 and HKSAR v C
Hung Kong Nam CACC346/2006 and HKSAR v Yim Kim Ping CACC67/2009.
D D
25. It was set out clearly in Lee Shinwon that the
E E
sentencing goal for human trafficking was deterrence. Such
offences involved sophisticated planning and arrangements to
F F
assist illegal immigrants to enter a third country using false
G documents. These activities tarnished Hong Kong’s international G
reputation and undermined the laws of Hong Kong and other
H jurisdictions which had a mutual responsibility to punish and H
deter those being trafficked. Thus, the sentences must be
I I
sufficiently severe to the persons who might be approached to
assist in such schemes to realize the seriousness of the crime
J J
and the consequences to them if detected.
K K
26. The court there referred to the cases I have referred
L to earlier, Cheng Kwong Chung, He Wen You and Yim Kim Ping. It L
was also necessary, it was held, to distinguish between the
M culpability of the persons being trafficked and those M
organizing, assisting in and profiting from the trafficking, and
N N
to achieve consistency in sentencing criminal conduct, the
factual matrix must be closely similar to the Court of Appeal
O O
authorities.
P P
27. It went on to hold no further discount for good
Q character was warranted, the one-third discount from plea Q
included allowance for good character. Previous good character
R R
normally counted for little for offences which required severe
deterrent sentences and there was no benchmark starting point.
S S
T 28. In the case of He Wen You, the defendant, a holder of T
a genuine PRC passport, checked in for a flight to Bangkok, went
U through the departure examination procedures at the airport to U
CRT33/26.11.2012/SY 7 DCCC814/2012/Sentence
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A A
go to Bangkok. He then queued up at the boarding gate for a
flight bound for Rome, Italy, holding a boarding pass for a
B B
different named customer. He was intercepted and he was charged
C for making a false representation to an immigration assistant, C
namely he was leaving Hong Kong for Thailand, and for obtaining
D services, namely the services of the flight to Rome, Italy, by D
deception by falsely representing that he was the person whose
E E
name was on the boarding pass.
F F
29. The Court of Appeal in that case held that the proper
G starting point for the person being trafficked, that is similar G
to all five of you here, for the false representation offence,
H that is falsely saying you were leaving Hong Kong for a H
destination when in fact you were not going to that destination
I I
was a starting point of 27 months after trial. For obtaining
services by deception, namely that in that case he was falsely
J J
representing he was the person on the boarding pass to the
K
airline was one of a starting point of 32 months imprisonment K
after trial.
L L
30. I bear in mind here that in your particular cases that
M the facts of the case show a misrepresentation not as to M
identity, but for the purposes of travel. All of you had used
N N
your genuine PRC passports, but falsely represented your real or
actual intentions. Nevertheless, the purpose or goal of your
O O
using Hong Kong and leaving Hong Kong was to go to Argentina
P illegally. P
Q 31. I must, as a sentencing court, be aware of the matters Q
referred to earlier and in Lee Shinwon as to the policy
R R
involved, considerations and the comity of nations’
considerations. It is clear that this type of offences involve
S S
exploitation of you people from mainland for substantial sums as
T was evident by D2 in having to pay over 100,000 Renminbi if he T
were to be successful in entering Argentina.
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A A
32. I am aware that these offences deliberately seek not
only to undermine Hong Kong laws but also the immigration laws
B B
of other jurisdictions. As a result, these activities would
C tarnish Hong Kong’s international reputation. Further, as a C
result of these activities, immigration authorities of foreign
D countries become wary of visitors from Hong Kong even when they D
are holding lawful travel documents which means that visitors
E E
from Hong Kong will have to suffer a certain degree of
inconvenience when they enter those countries.
F F
G 33. The comity of nations’ consideration applies where G
mutual responsibility should be shared by all nations to punish
H and deter those who tried to cross international borders with H
false travel documents.
I I
34. D4 and D5, although you are under 21 and the court may
J J
consider whether there are other more appropriate sentences
K
other than imprisonment, it is my view that in view of the K
seriousness of this offence and the deterrence set down by the
L Court of Appeal that the only appropriate sentence to you both L
is one of a sentence of imprisonment.
M M
35. For D1, you have a further charge of possessing five
N N
false passports, I have been assisted by reference to the case
of HKSAR v Ma Yuen Chi CACC537/2005, the date of judgment being
O O
14 June 2006. In that case the court accepted that a sentence of
P 5 years’ imprisonment after trial was appropriate for the P
possession of 11 forged passports. In that case, a courier was
Q found carrying a large number of false passports. It was said in Q
that case there was no mitigating factor other than the plea to
R R
which the applicant had been given the one-third discount.
S S
36. I accept in your case you did not have 11 passports
T but had five. I also accept there is no evidence of you working T
for a syndicate. The offence relating to false passports is
U again a very serious offence as there is an obvious U
CRT33/26.11.2012/SY 9 DCCC814/2012/Sentence
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A A
international dimension to them. There are obviously various
methods to which people use to smuggle people in to different
B B
countries and that was clearly evident in this case as to how
C these passports were to be used by you all to eventually enter C
into Argentina.
D D
37. I am of course fully aware that D2 to D5 were not in
E E
possession of these passports and there was no evidence before
me that they knew of these forged passports.
F F
G 38. On this basis and taking into consideration the G
sentences as previously passed in the other cases and the cases
H that I have cited, defendants, you should be sentenced to the H
following terms of imprisonment.
I I
39. For Charge 1, I take a starting point of 33 months’
J J
imprisonment had I convicted you after trial, and giving you all
K
full credit for your plea of guilty, I reduce that term to one K
of 22 months’ imprisonment.
L L
40. For the offences which you are all individually
M charged with Charges 2 to 6, of making a false representation to M
an immigration officer, that is D1, Charge 2, D2, Charge 3, D3,
N N
Charge 4, D4, Charge 5, D5, Charge 6, I take a starting point of
27 months’ imprisonment had I convicted you after trial and
O O
reduce that term to 18 months’ imprisonment.
P P
41. For D1, on Charge 7, I shall take a starting point of
Q 42 months’ imprisonment and giving you full credit for your plea Q
of guilty, I reduce that term to 28 months’ imprisonment.
R R
42. For D2 to D5, those terms of imprisonment shall run
S S
concurrent to each other. That will make a total term of 1 year
T and 10 months’ imprisonment. T
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A A
43. For D1, Charges 1 and 2 shall run concurrent to each
other similar to the other defendants’ sentences. However,
B B
Charge 7 being a distinct and separate charge, that sentence
C shall be served partly consecutive and partly concurrent. 6 C
months shall run consecutive to the present term and the
D remaining terms are to run concurrent. You shall therefore serve D
a total term of 28 months’ imprisonment which is 2 years 4
E E
months’ imprisonment.
F F
G G
H H
(S. D’Almada Remedios)
I District Judge I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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