A A
B B
DCCC 264 & 454/2020
[2020] HKDC 990
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 264 & 454 OF 2020
E ____________ E
HKSAR
F F
v
G G
LU YANBO D1
H CHEN JUN D2 H
____________
I I
Before: HH Judge Dufton
J Date: 30 October 2020 J
Present: Mr Victor Lee, counsel on fiat, for HKSAR
K Mr Bok Tin Yuen instructed by Charles Yeung Clement Lam K
Liu & Yip, assigned by the Director of Legal Aid, for D1
Mr Kenny W.K. Chan instructed by Samuel Ho & Co,
L L
assigned by the Director of Legal Aid, for D2
Offences: (1) (4) & (5) Breach of condition of stay
M M
(違反逗留條件)
(2) Possession of a forged identity card
N N
(管有偽造身分證)
(3) (6) & (7) Conspiracy to transfer a forged identity card
O O
(串謀轉讓偽造身分證)
P P
REASONS FOR SENTENCE
Q Q
1. D1 pleads guilty to one charge of breach of condition of stay,
R contrary to section 41 of the Immigration Ordinance 1 (charge 1); one R
charge of possession of a forged identity card, contrary to section 7A(1)
S S
T T
1
Cap 115.
U U
V V
2
A A
B B
of the Registration of Persons Ordinance2 (charge 2) and three charges of
C conspiracy to transfer a forged identity card, contrary to section 7AA(1) C
(b) of the Registration of Persons Ordinance and sections 159A and 159C
D D
of the Crimes Ordinance3 (charges 3, 6 & 7).
E E
2. D2 pleads guilty to two charges of breach of condition of
F stay, contrary to section 41 of the Immigration Ordinance (charges 4 & 5); F
and two charges of conspiracy to transfer a forged identity card, contrary
G G
to section 7AA(1) (b) of the Registration of Persons Ordinance and
H sections 159A and 159C of the Crimes Ordinance4 (charges 6 & 7). H
I I
3. Full particulars of the offences are set out in the re-amended
J consolidated summary of facts admitted by the defendants today5. J
K K
4. In summary the defendants, who were visitors from the
L
Mainland, overstayed. While overstaying the defendants were part of a L
syndicate which supplied forged identity cards to enable visitors from the
M M
Mainland to illegally work in Hong Kong.
N N
5. The conspiracy was uncovered on 9 December 2019 when
O Customs officers at the Inbound Cargo Examination Building of the Lok O
Ma Chau Control Point inspected a goods vehicle of “SF Express”.
P P
Q Q
2
Cap 177.
R 3
R
Cap 200.
4
Cap 200.
S S
5
The defendants first appeared for plea and sentence on 7 October 2020. The court not being
satisfied the summary of facts were sufficiently clear and precise as they should have been in
T order to explain the pleas of guilty and to assist the court, the case was adjourned to 13 October T
for the prosecution to amend the summary of facts. The summary of facts requiring further
amendment the case was further adjourned to 30 October.
U U
V V
3
A A
B B
6. Customs officers found a postal envelope (“envelope 1”)
C containing the two forged identity cards subject of charges 6 and 7. The C
receivers name on the envelope was Ng Ka Hoi and the address was Rear
D D
Flat, 418-42020 Un Chau Street, Sham Shui Po with a telephone number
E 6488 6045. E
F 7. The case was referred to the Immigration Department for F
investigation.
G G
H 8. The next day, 10 December 2019, SF Express informed the H
Immigration Department that another envelope (“envelope 2”) addressed
I I
to the same receiver had been found. The envelope contained the forged
J identity card subject of charge 3. J
K K
9. On the same day Immigration officer Chan called the
L
number 6488 6045 but in vain. The next day, 11 December 2019, L
Immigration Assistant Ng arranged to deliver envelope 1. Immigration
M M
Assistant Ng telephoned number 5575 8933 which number had been
N recorded by SF Express when someone called to check the delivery status. N
D1 answered the call claiming to be Ng Ka Hoi and asked Immigration
O O
Assistant Ng to call him again when he arrived at 418 Un Chau Street.
P P
10. On arrival at 418 Un Chau Street Immigration Assistant Ng,
Q disguised as a courier of SF Express, called 5575 8933. D1 answered the Q
call and requested to meet outside a nearby McDonald’s. When D1 met
R R
Immigration Assistant Ng outside McDonald’s he spoke in Putonghua
S saying that he wanted to pick up the mail; that his name was Ng Ka Hoi; S
the telephone number for picking up the mail was 6488 6045 and the
T T
address was Rear Flat, 418-42020 Un Chau Street, Sham Shui Po.
U U
V V
4
A A
B B
11. Immigration Assistant Ng then revealed his identity. On
C being asked to produce proof of identity the defendant produced his Exit- C
entry Permit for Travelling to and from Hong Kong and Macau.
D D
Enquiries revealed that D1 was an overstayer whereupon he was detained
E and cautioned. E
F 12. Under caution D1 revealed that he was residing at Flat A, F
8/F, 418 Un Chau Street and said he was willing to take Immigration
G G
officers to his flat. On arrival D2 and two mainlanders Zhang Xiaomei
H and Chen Hui, were found inside the flat. Zhang Xiaomei, whose portrait H
appears on one of the forged identity cards found in envelope 1, is named
I I
6
as a co-conspirator in charge 6 .
J J
Breach of condition of stay – overstaying – charges 1 & 4
K K
L
13. D1 arrived in Hong Kong on 2 September 2019 and was L
permitted to remain as a visitor until 6 September 2019. D1 did not
M M
depart Hong Kong as required and had overstayed just over three months
N when he was arrested (charge 1). N
O 14. D2 arrived in Hong Kong on 11 June 2019 and was O
permitted to remain as a visitor until 18 June 2019. D2 did not depart
P P
Hong Kong as required and had overstayed nearly six months when he
Q was arrested (charge 4). Q
R 6
R
In STCC 4517/2019 Zhang Xiaomei (D4) pleaded guilty to conspiring with Chen Jun (D2) to
possess a forged identity card (amended charge 10). The forged identity card is the same forged
S identity card subject of charge 6 in the current proceedings. Zhang was sentenced to 12 months’ S
imprisonment on 1 April 2020. Copies of the court papers including the charges, brief facts of the
case and the magistrates’ notes have been shown to the parties.
T T
U U
V V
5
A A
B B
Breach of condition of stay – illegally working – charge 5
C C
15. Under caution D2 admitted, inter alia, that in November
D 2019 he met a person called “Jie Fu” who arranged for mainlanders to D
work in Hong Kong; he ran errands for “Jie Fu” for which he would be
E E
paid around $2,000 for successfully helping someone get a job and that
F he had received around $11,000 from “Jie Fu” for bringing six F
mainlanders to the workplace.
G G
H Possession of a forged identity card – charge 2 H
I 16. On a search of D1’s flat a forged identity card in the name of I
Ng Ka Hoi, the name of the receiver on the two envelopes, was found
J J
from a bag on D1’s bed. The forged identity card bore the photograph of
K K
D1.
L L
17. Under caution D1 admitted, inter alia, that he had obtained
M the identity card from a middleman called “Jie Fu”. M
N N
Conspiracy to transfer a forged identity card - charges 3, 6 & 7
O O
D1 (charges 3, 6 & 7)
P P
18. Under caution D1 admitted, inter alia, that he was working
Q Q
with “Jie Fu” and D2; “Jie Fu” made forged identity cards and then
R posted them to Hong Kong by SF Express; he was responsible for R
collecting the forged identity cards and delivering them to D2 who would
S S
then deliver them to mainlanders for employment; he would receive
T RMB3,000 each time and that he was aware the envelopes contained T
forged identity cards to be used for mainlanders to work in Hong Kong.
U U
V V
6
A A
B B
D2 (charges 6 & 7)
C C
19. On arrest D2’s mobile phone was seized. Images of the two
D forged identity cards particularised in charges 6 and 7 were found on the D
phone. WeChat messages revealed D2 arranging for the forged identity
E E
cards to be made for Zhang Xiaomei and Wang Bangfen, including
F Zhang and Wang depositing the fee for making the forged identity cards. F
G G
20. Under caution D2 admitted, inter alia, that he was working
H for “Jie Fu” and was responsible for finding jobs for mainlanders and H
bringing them to the workplace.
I I
Mitigation
J J
K 21. In passing sentence, I have carefully considered the K
submissions of Mr Bok and Mr Chan, together with the authorities
L L
submitted by counsel7.
M M
D1
N N
22. I have carefully considered the oral and written submissions
O O
of Mr Bok on behalf of D1, who is 36, married with two children, aged 6
P and 15 and who worked as a casual construction site worker on the P
Mainland8.
Q Q
R 7
R
Mr Bok submitted HKSAR v Xie Chun Mei [2004] 1 HKLRD 865 (CACC 285/2003); HKSAR v Li
Chang Li [2005] 1 HKLRD 864 (HCMA 935A/2004) and HKSAR v Liaqut Ali Khan HCMA
S 278/2009. S
Mr Chan also submitted HKSAR v Li Chang Li [2005] 1 HKLRD 864 and HKSAR v Ma Ming
T [2013] 1 HKLRD 813. Mr Chan also relied on the Reasons for Sentence in HKSAR v Hon Yin T
Sang & others DCCC 1349/2010.
8
See §6 of the written mitigation submission of D1.
U U
V V
7
A A
B B
23. I have read D1’s mitigation letter in which he explains that
C he came to Hong Kong to earn more money for his family; promises C
never to do illegal things again and asks for a lenient sentence.
D D
D2
E E
F 24. In passing sentence, I have carefully considered the oral and F
written submissions of Mr Chan on behalf of D2, who is 29, single and a
G G
factory worker. I take into account D2 is the sole breadwinner of the
H family and came to Hong Kong to earn medical expenses for his father, H
who has brain disease and is disabled 9.
I I
25. I have read D2’s mitigation letter in which he expresses his
J J
remorse; promises not to break the law again and asks for a lenient
K K
sentence so he can return home to look after his father.
L L
26. I have also read the letter from Father John Wotherspoon,
M who helped in obtaining a medical note confirming the illness and M
disability of D2’s father.
N N
O 27. I take into account that both defendants have clear records in O
Hong Kong. This however carries little weight, the commission of
P P
offences by visitors being an aggravating feature of sentence.
Q Q
Breach of condition of stay – overstaying – charges 1 & 4
R R
28. Taking into account the period of overstay of both
S S
defendants was months, I am satisfied a starting point of 3 months’
T T
9
See §§1-6 & 32 of the written mitigation for D2.
U U
V V
8
A A
B B
imprisonment is appropriate. Giving the defendants full credit for their
C pleas of guilty reduces the sentence on each charge to 2 months’ C
imprisonment.
D D
Breach of condition of stay – illegal working – charge 5
E E
F 29. Taking into account the nature of the work undertaken by D2, F
I am satisfied a starting point of 3 months’ imprisonment is appropriate.
G G
Giving D2 full credit for his plea of guilty reduces the sentence to 2
H months’ imprisonment. H
I Possession of a forged identity card – charge 2 I
J J
30. In HKSAR v Li Chang Li the Court of Appeal held that the
K sentence upon a plea of guilty for possession of a forged identity card or K
identity card belonging to another should ordinarily be 12 months,
L L
whether or not the offender was lawfully staying in Hong Kong 10 . D1
M having pleaded guilty the appropriate sentence is 12 months’ M
imprisonment.
N N
O Conspiracy to transfer a forged identity card - charges 3, 6 & 7 O
P 31. Mr Chan refers the court to the Reasons for Sentence in P
HKSAR v Hon Yin Sang & others where a starting point of 27 months’
Q Q
imprisonment was adopted for each of three charges of conspiracy to use
R a forged identity card. The role of D1 in that case, who was an overstayer R
and who the sentencing judge described as a member of an international
S S
T T
10
[2004-2005] HKCLRT 193.
U U
V V
9
A A
B B
forged identity card group, was to pass the forged identity cards to D2,
C D3 and D4 and accompany them to find a job in Hong Kong11. C
D 32. D1 pleaded guilty and was sentenced to 18 months’ D
imprisonment on each charge and to a total sentence of 20 months’
E E
imprisonment.
F F
33. D2, D3 and D4 who used the forged identity cards to obtain
G G
employment were sentenced in accordance with the guidelines in HKSAR
H v Li Chang Li, namely 15 months’ imprisonment on a plea of guilty. H
I 34. In my view a total sentence of 20 months’ imprisonment is I
lenient and does not adequately reflect D1’s role in an international
J J
syndicate involved in the use of forged identity cards to obtain
K K
employment.
L L
35. In HKSAR v Baljit Singh the Court of Appeal confirmed a
M starting point of 3 years and 6 months’ imprisonment for conspiracy to M
make false instruments. The role of the appellant was to forward the
N N
photographs and personal particulars of non-refoulement claimants who
O wanted forged identity cards and to collect the forged identity cards after O
they had been made in China12.
P P
Q 36. I agree with the comments of the sentencing judge including Q
that the offences damaged the integrity of the identity card system
R R
11
S DCCC 1349/2010. An agreed translation of the Reasons for Sentence have been submitted to court. S
See §§20-29 of the written mitigation for D2.
12
T CACC 17/2018 at §§7-12, 18, 34 & 43-45. When adjourning the case on 7 October 2020, the court T
referred the parties to HKSAR v Baljit Singh for their consideration. During the adjournment Mr
Chan filed additional mitigation on behalf of D2.
U U
V V
10
A A
B B
whereby persons use forged identity cards for illegal purposes, such as
C taking up employment thereby depriving local workers of employment 13. C
D 37. This echoes similar sentiments expressed by the Court of D
Appeal in HKSAR v Chan Yip Chi that the use of forged identity
E E
documents is serious and takes away job opportunities of local residents
F thus creating serious social and economic problems 14. F
G G
38. In HKSAR v Chan Yip Chi the applicant was in the business
H of supplying false instruments, namely an “Acknowledgement of H
Application for a Hong Kong Permanent Identity Card”, commonly
I I
known as a “Temporary Identity Card”. The false instruments would be
J used by visitors, who otherwise would not be entitled to seek employment. J
The Court of Appeal held that a starting point of 3 years and 6 months’
K K
imprisonment was appropriate for each of two offences of possession of a
L false instrument. L
M M
39. In his additional mitigation Mr Chan submits that the
N charges in HKSAR v Baljit Singh are more serious, namely conspiracy to N
make false instruments. Mr Bok makes the same submission orally in
O O
court today.
P P
40. Whilst making false instruments is more serious than using
Q or transferring a false instrument and attracts a higher maximum sentence, Q
the role of the defendant in HKSAR v Baljit Singh was not that of the
R R
maker. As noted earlier the role of the appellant was to forward the
S S
13
T See §18 of the Reasons for Sentence in HKSAR v Baljit Singh DCCC 328/2017. Also see §17 T
HKSAR v Baljit Singh CACC 17/2018.
14
[2006] 2 HKLRD 181 at §15.
U U
V V
11
A A
B B
photographs and personal particulars of non-refoulement claimants who
C wanted forged identity cards and to collect the forged identity cards after C
15
they had been made in China .
D D
41. In the present case the three conspiracies concern three
E E
different forged identity cards which were to be used to obtain
F employment. The defendants were clearly part of an international F
syndicate which supplied forged identity cards to visitors from the
G G
Mainland so that they could work illegally in Hong Kong.
H H
42. On the evidence before the court the role of D1 is limited to
I I
collecting the forged identity cards and passing them to D2 whereas D2
J not only arranged for the forged identity cards to be made but was also J
responsible for finding jobs for the mainlanders and bringing them to the
K K
workplace. I am satisfied a higher starting point is appropriate for D2 to
L reflect the difference in the roles of D1 and D2. L
M M
43. I am satisfied a starting point of 3 years and 3 months’
N imprisonment is appropriate for D1 on charges 3, 6 and 7 and a starting N
point of 3 years and 6 months’ imprisonment is appropriate for D2 on
O O
charges 6 and 7.
P P
44. Giving the defendants full credit for their pleas of guilty
Q reduces the sentence for D1 on each of charges 3, 6 and 7 to 2 years and 2 Q
months’ imprisonment and for D2 to 2 years and 4 months’ imprisonment
R R
on charges 6 and 7.
S S
T T
15
HKSAR v Baljit Singh at §11. Reasons for Sentence in DCCC 328/2017 at §5.
U U
V V
12
A A
B B
Totality
C C
45. In considering totality of sentence I have taken into account
D the co-operation of both defendants16. D
E E
D1
F F
46. In HKSAR v Chan Yip Chi the Court of Appeal upheld the
G judge’s order of a consecutive term of 7 months for the second offence. G
H H
47. I am satisfied the total sentence should reflect that three
I forged identity cards were involved. I am satisfied a total sentence of 2 I
years and 6 months’ imprisonment properly reflects D1’s overall criminal
J J
culpability on the conspiracy charges 3, 6 & 7.
K K
48. The forged identity card bearing D1’s photograph was in the
L L
name of Ng Ka Hoi, the name which D1 used to collect the forged
M
identity cards. I am satisfied a concurrent sentence is appropriate. M
N 49. I am satisfied D1 having overstayed before entering into the N
conspiracies adds to his culpability for which a consecutive sentence is
O O
appropriate making a total sentence of 2 years and 8 months’
P imprisonment. P
Q Q
50. I am satisfied a total sentence of 2 years and 8 months’
R imprisonment properly reflects D1’s criminality on the five charges and R
S S
T T
16
See §9.4 of the written mitigation submission of D1 and §§16-19 & 33 of the written mitigation
for D2.
U U
V V
13
A A
B B
takes into account D1’s personal circumstances and the seriousness of the
C offences17. C
D D2 D
E E
51. The WeChat messages clearly show two separate
F arrangements for the transfer of the forged identity cards and the F
obtaining of employment. I am satisfied a consecutive term of 2 months’
G G
imprisonment making a total sentence of 2 years and 6 months’
H imprisonment properly reflects D2’s overall criminal culpability on the H
conspiracy charges 6 & 7.
I I
52. I am satisfied that D2 having overstayed before entering into
J J
the conspiracies adds to his culpability for which a consecutive sentence
K
is appropriate making a total sentence of 2 years and 8 months’ K
L
imprisonment. L
M 53. The illegal work undertaken by D2 being the same as his role M
in the conspiracies, I am satisfied a concurrent sentence is appropriate for
N N
charge 5.
O O
54. I am satisfied a total sentence of 2 years and 8 months’
P P
imprisonment properly reflects D2’s criminality on the four charges and
Q takes into account D2’s personal circumstances and the seriousness of the Q
offences.
R R
S S
T T
17
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 as applied in HKSAR v Pau King Kong
[2013] 3 HKLRD 676.
U U
V V
14
A A
B B
Sentence
C C
55. The defendants are convicted and sentenced as follows:
D D
D1
E E
Charge 3 – 2 years and 2 months’ imprisonment;
F F
G Charge 6 – 2 years and 2 months’ imprisonment with 2 months G
consecutive and 2 years concurrent to charge 3
H H
Charge 7 – 2 years and 2 months’ imprisonment with 2 months
I I
consecutive and 2 years concurrent to charges 3 & 6;
J J
Charge 2 – 12 months’ imprisonment concurrent to charges 3, 6 & 7; and
K K
L
Charge 1 – 2 months’ imprisonment consecutive to charges 2, 3, 6 & 7. L
M The total sentence to be served by D1 is 2 years and 8 M
months’ imprisonment.
N N
O D2 O
P Charge 6 – 2 years and 4 months’ imprisonment; P
Q Q
Charge 7 – 2 years and 4 months’ imprisonment with 2 months
R consecutive and 2 years and 2 months concurrent to charge 6; R
S Charge 4 – 2 months’ imprisonment consecutive to charges 6 & 7; and S
T T
Charge 5 – 2 months’ imprisonment concurrent to charges 4, 6 & 7;
U U
V V
15
A A
B B
The total sentence to be served by D2 is 2 years and 8
C months’ imprisonment. C
D D
E E
(D. J. DUFTON)
F District Judge F
G G
H H
I 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
V V
A A
B B
DCCC 264 & 454/2020
[2020] HKDC 990
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 264 & 454 OF 2020
E ____________ E
HKSAR
F F
v
G G
LU YANBO D1
H CHEN JUN D2 H
____________
I I
Before: HH Judge Dufton
J Date: 30 October 2020 J
Present: Mr Victor Lee, counsel on fiat, for HKSAR
K Mr Bok Tin Yuen instructed by Charles Yeung Clement Lam K
Liu & Yip, assigned by the Director of Legal Aid, for D1
Mr Kenny W.K. Chan instructed by Samuel Ho & Co,
L L
assigned by the Director of Legal Aid, for D2
Offences: (1) (4) & (5) Breach of condition of stay
M M
(違反逗留條件)
(2) Possession of a forged identity card
N N
(管有偽造身分證)
(3) (6) & (7) Conspiracy to transfer a forged identity card
O O
(串謀轉讓偽造身分證)
P P
REASONS FOR SENTENCE
Q Q
1. D1 pleads guilty to one charge of breach of condition of stay,
R contrary to section 41 of the Immigration Ordinance 1 (charge 1); one R
charge of possession of a forged identity card, contrary to section 7A(1)
S S
T T
1
Cap 115.
U U
V V
2
A A
B B
of the Registration of Persons Ordinance2 (charge 2) and three charges of
C conspiracy to transfer a forged identity card, contrary to section 7AA(1) C
(b) of the Registration of Persons Ordinance and sections 159A and 159C
D D
of the Crimes Ordinance3 (charges 3, 6 & 7).
E E
2. D2 pleads guilty to two charges of breach of condition of
F stay, contrary to section 41 of the Immigration Ordinance (charges 4 & 5); F
and two charges of conspiracy to transfer a forged identity card, contrary
G G
to section 7AA(1) (b) of the Registration of Persons Ordinance and
H sections 159A and 159C of the Crimes Ordinance4 (charges 6 & 7). H
I I
3. Full particulars of the offences are set out in the re-amended
J consolidated summary of facts admitted by the defendants today5. J
K K
4. In summary the defendants, who were visitors from the
L
Mainland, overstayed. While overstaying the defendants were part of a L
syndicate which supplied forged identity cards to enable visitors from the
M M
Mainland to illegally work in Hong Kong.
N N
5. The conspiracy was uncovered on 9 December 2019 when
O Customs officers at the Inbound Cargo Examination Building of the Lok O
Ma Chau Control Point inspected a goods vehicle of “SF Express”.
P P
Q Q
2
Cap 177.
R 3
R
Cap 200.
4
Cap 200.
S S
5
The defendants first appeared for plea and sentence on 7 October 2020. The court not being
satisfied the summary of facts were sufficiently clear and precise as they should have been in
T order to explain the pleas of guilty and to assist the court, the case was adjourned to 13 October T
for the prosecution to amend the summary of facts. The summary of facts requiring further
amendment the case was further adjourned to 30 October.
U U
V V
3
A A
B B
6. Customs officers found a postal envelope (“envelope 1”)
C containing the two forged identity cards subject of charges 6 and 7. The C
receivers name on the envelope was Ng Ka Hoi and the address was Rear
D D
Flat, 418-42020 Un Chau Street, Sham Shui Po with a telephone number
E 6488 6045. E
F 7. The case was referred to the Immigration Department for F
investigation.
G G
H 8. The next day, 10 December 2019, SF Express informed the H
Immigration Department that another envelope (“envelope 2”) addressed
I I
to the same receiver had been found. The envelope contained the forged
J identity card subject of charge 3. J
K K
9. On the same day Immigration officer Chan called the
L
number 6488 6045 but in vain. The next day, 11 December 2019, L
Immigration Assistant Ng arranged to deliver envelope 1. Immigration
M M
Assistant Ng telephoned number 5575 8933 which number had been
N recorded by SF Express when someone called to check the delivery status. N
D1 answered the call claiming to be Ng Ka Hoi and asked Immigration
O O
Assistant Ng to call him again when he arrived at 418 Un Chau Street.
P P
10. On arrival at 418 Un Chau Street Immigration Assistant Ng,
Q disguised as a courier of SF Express, called 5575 8933. D1 answered the Q
call and requested to meet outside a nearby McDonald’s. When D1 met
R R
Immigration Assistant Ng outside McDonald’s he spoke in Putonghua
S saying that he wanted to pick up the mail; that his name was Ng Ka Hoi; S
the telephone number for picking up the mail was 6488 6045 and the
T T
address was Rear Flat, 418-42020 Un Chau Street, Sham Shui Po.
U U
V V
4
A A
B B
11. Immigration Assistant Ng then revealed his identity. On
C being asked to produce proof of identity the defendant produced his Exit- C
entry Permit for Travelling to and from Hong Kong and Macau.
D D
Enquiries revealed that D1 was an overstayer whereupon he was detained
E and cautioned. E
F 12. Under caution D1 revealed that he was residing at Flat A, F
8/F, 418 Un Chau Street and said he was willing to take Immigration
G G
officers to his flat. On arrival D2 and two mainlanders Zhang Xiaomei
H and Chen Hui, were found inside the flat. Zhang Xiaomei, whose portrait H
appears on one of the forged identity cards found in envelope 1, is named
I I
6
as a co-conspirator in charge 6 .
J J
Breach of condition of stay – overstaying – charges 1 & 4
K K
L
13. D1 arrived in Hong Kong on 2 September 2019 and was L
permitted to remain as a visitor until 6 September 2019. D1 did not
M M
depart Hong Kong as required and had overstayed just over three months
N when he was arrested (charge 1). N
O 14. D2 arrived in Hong Kong on 11 June 2019 and was O
permitted to remain as a visitor until 18 June 2019. D2 did not depart
P P
Hong Kong as required and had overstayed nearly six months when he
Q was arrested (charge 4). Q
R 6
R
In STCC 4517/2019 Zhang Xiaomei (D4) pleaded guilty to conspiring with Chen Jun (D2) to
possess a forged identity card (amended charge 10). The forged identity card is the same forged
S identity card subject of charge 6 in the current proceedings. Zhang was sentenced to 12 months’ S
imprisonment on 1 April 2020. Copies of the court papers including the charges, brief facts of the
case and the magistrates’ notes have been shown to the parties.
T T
U U
V V
5
A A
B B
Breach of condition of stay – illegally working – charge 5
C C
15. Under caution D2 admitted, inter alia, that in November
D 2019 he met a person called “Jie Fu” who arranged for mainlanders to D
work in Hong Kong; he ran errands for “Jie Fu” for which he would be
E E
paid around $2,000 for successfully helping someone get a job and that
F he had received around $11,000 from “Jie Fu” for bringing six F
mainlanders to the workplace.
G G
H Possession of a forged identity card – charge 2 H
I 16. On a search of D1’s flat a forged identity card in the name of I
Ng Ka Hoi, the name of the receiver on the two envelopes, was found
J J
from a bag on D1’s bed. The forged identity card bore the photograph of
K K
D1.
L L
17. Under caution D1 admitted, inter alia, that he had obtained
M the identity card from a middleman called “Jie Fu”. M
N N
Conspiracy to transfer a forged identity card - charges 3, 6 & 7
O O
D1 (charges 3, 6 & 7)
P P
18. Under caution D1 admitted, inter alia, that he was working
Q Q
with “Jie Fu” and D2; “Jie Fu” made forged identity cards and then
R posted them to Hong Kong by SF Express; he was responsible for R
collecting the forged identity cards and delivering them to D2 who would
S S
then deliver them to mainlanders for employment; he would receive
T RMB3,000 each time and that he was aware the envelopes contained T
forged identity cards to be used for mainlanders to work in Hong Kong.
U U
V V
6
A A
B B
D2 (charges 6 & 7)
C C
19. On arrest D2’s mobile phone was seized. Images of the two
D forged identity cards particularised in charges 6 and 7 were found on the D
phone. WeChat messages revealed D2 arranging for the forged identity
E E
cards to be made for Zhang Xiaomei and Wang Bangfen, including
F Zhang and Wang depositing the fee for making the forged identity cards. F
G G
20. Under caution D2 admitted, inter alia, that he was working
H for “Jie Fu” and was responsible for finding jobs for mainlanders and H
bringing them to the workplace.
I I
Mitigation
J J
K 21. In passing sentence, I have carefully considered the K
submissions of Mr Bok and Mr Chan, together with the authorities
L L
submitted by counsel7.
M M
D1
N N
22. I have carefully considered the oral and written submissions
O O
of Mr Bok on behalf of D1, who is 36, married with two children, aged 6
P and 15 and who worked as a casual construction site worker on the P
Mainland8.
Q Q
R 7
R
Mr Bok submitted HKSAR v Xie Chun Mei [2004] 1 HKLRD 865 (CACC 285/2003); HKSAR v Li
Chang Li [2005] 1 HKLRD 864 (HCMA 935A/2004) and HKSAR v Liaqut Ali Khan HCMA
S 278/2009. S
Mr Chan also submitted HKSAR v Li Chang Li [2005] 1 HKLRD 864 and HKSAR v Ma Ming
T [2013] 1 HKLRD 813. Mr Chan also relied on the Reasons for Sentence in HKSAR v Hon Yin T
Sang & others DCCC 1349/2010.
8
See §6 of the written mitigation submission of D1.
U U
V V
7
A A
B B
23. I have read D1’s mitigation letter in which he explains that
C he came to Hong Kong to earn more money for his family; promises C
never to do illegal things again and asks for a lenient sentence.
D D
D2
E E
F 24. In passing sentence, I have carefully considered the oral and F
written submissions of Mr Chan on behalf of D2, who is 29, single and a
G G
factory worker. I take into account D2 is the sole breadwinner of the
H family and came to Hong Kong to earn medical expenses for his father, H
who has brain disease and is disabled 9.
I I
25. I have read D2’s mitigation letter in which he expresses his
J J
remorse; promises not to break the law again and asks for a lenient
K K
sentence so he can return home to look after his father.
L L
26. I have also read the letter from Father John Wotherspoon,
M who helped in obtaining a medical note confirming the illness and M
disability of D2’s father.
N N
O 27. I take into account that both defendants have clear records in O
Hong Kong. This however carries little weight, the commission of
P P
offences by visitors being an aggravating feature of sentence.
Q Q
Breach of condition of stay – overstaying – charges 1 & 4
R R
28. Taking into account the period of overstay of both
S S
defendants was months, I am satisfied a starting point of 3 months’
T T
9
See §§1-6 & 32 of the written mitigation for D2.
U U
V V
8
A A
B B
imprisonment is appropriate. Giving the defendants full credit for their
C pleas of guilty reduces the sentence on each charge to 2 months’ C
imprisonment.
D D
Breach of condition of stay – illegal working – charge 5
E E
F 29. Taking into account the nature of the work undertaken by D2, F
I am satisfied a starting point of 3 months’ imprisonment is appropriate.
G G
Giving D2 full credit for his plea of guilty reduces the sentence to 2
H months’ imprisonment. H
I Possession of a forged identity card – charge 2 I
J J
30. In HKSAR v Li Chang Li the Court of Appeal held that the
K sentence upon a plea of guilty for possession of a forged identity card or K
identity card belonging to another should ordinarily be 12 months,
L L
whether or not the offender was lawfully staying in Hong Kong 10 . D1
M having pleaded guilty the appropriate sentence is 12 months’ M
imprisonment.
N N
O Conspiracy to transfer a forged identity card - charges 3, 6 & 7 O
P 31. Mr Chan refers the court to the Reasons for Sentence in P
HKSAR v Hon Yin Sang & others where a starting point of 27 months’
Q Q
imprisonment was adopted for each of three charges of conspiracy to use
R a forged identity card. The role of D1 in that case, who was an overstayer R
and who the sentencing judge described as a member of an international
S S
T T
10
[2004-2005] HKCLRT 193.
U U
V V
9
A A
B B
forged identity card group, was to pass the forged identity cards to D2,
C D3 and D4 and accompany them to find a job in Hong Kong11. C
D 32. D1 pleaded guilty and was sentenced to 18 months’ D
imprisonment on each charge and to a total sentence of 20 months’
E E
imprisonment.
F F
33. D2, D3 and D4 who used the forged identity cards to obtain
G G
employment were sentenced in accordance with the guidelines in HKSAR
H v Li Chang Li, namely 15 months’ imprisonment on a plea of guilty. H
I 34. In my view a total sentence of 20 months’ imprisonment is I
lenient and does not adequately reflect D1’s role in an international
J J
syndicate involved in the use of forged identity cards to obtain
K K
employment.
L L
35. In HKSAR v Baljit Singh the Court of Appeal confirmed a
M starting point of 3 years and 6 months’ imprisonment for conspiracy to M
make false instruments. The role of the appellant was to forward the
N N
photographs and personal particulars of non-refoulement claimants who
O wanted forged identity cards and to collect the forged identity cards after O
they had been made in China12.
P P
Q 36. I agree with the comments of the sentencing judge including Q
that the offences damaged the integrity of the identity card system
R R
11
S DCCC 1349/2010. An agreed translation of the Reasons for Sentence have been submitted to court. S
See §§20-29 of the written mitigation for D2.
12
T CACC 17/2018 at §§7-12, 18, 34 & 43-45. When adjourning the case on 7 October 2020, the court T
referred the parties to HKSAR v Baljit Singh for their consideration. During the adjournment Mr
Chan filed additional mitigation on behalf of D2.
U U
V V
10
A A
B B
whereby persons use forged identity cards for illegal purposes, such as
C taking up employment thereby depriving local workers of employment 13. C
D 37. This echoes similar sentiments expressed by the Court of D
Appeal in HKSAR v Chan Yip Chi that the use of forged identity
E E
documents is serious and takes away job opportunities of local residents
F thus creating serious social and economic problems 14. F
G G
38. In HKSAR v Chan Yip Chi the applicant was in the business
H of supplying false instruments, namely an “Acknowledgement of H
Application for a Hong Kong Permanent Identity Card”, commonly
I I
known as a “Temporary Identity Card”. The false instruments would be
J used by visitors, who otherwise would not be entitled to seek employment. J
The Court of Appeal held that a starting point of 3 years and 6 months’
K K
imprisonment was appropriate for each of two offences of possession of a
L false instrument. L
M M
39. In his additional mitigation Mr Chan submits that the
N charges in HKSAR v Baljit Singh are more serious, namely conspiracy to N
make false instruments. Mr Bok makes the same submission orally in
O O
court today.
P P
40. Whilst making false instruments is more serious than using
Q or transferring a false instrument and attracts a higher maximum sentence, Q
the role of the defendant in HKSAR v Baljit Singh was not that of the
R R
maker. As noted earlier the role of the appellant was to forward the
S S
13
T See §18 of the Reasons for Sentence in HKSAR v Baljit Singh DCCC 328/2017. Also see §17 T
HKSAR v Baljit Singh CACC 17/2018.
14
[2006] 2 HKLRD 181 at §15.
U U
V V
11
A A
B B
photographs and personal particulars of non-refoulement claimants who
C wanted forged identity cards and to collect the forged identity cards after C
15
they had been made in China .
D D
41. In the present case the three conspiracies concern three
E E
different forged identity cards which were to be used to obtain
F employment. The defendants were clearly part of an international F
syndicate which supplied forged identity cards to visitors from the
G G
Mainland so that they could work illegally in Hong Kong.
H H
42. On the evidence before the court the role of D1 is limited to
I I
collecting the forged identity cards and passing them to D2 whereas D2
J not only arranged for the forged identity cards to be made but was also J
responsible for finding jobs for the mainlanders and bringing them to the
K K
workplace. I am satisfied a higher starting point is appropriate for D2 to
L reflect the difference in the roles of D1 and D2. L
M M
43. I am satisfied a starting point of 3 years and 3 months’
N imprisonment is appropriate for D1 on charges 3, 6 and 7 and a starting N
point of 3 years and 6 months’ imprisonment is appropriate for D2 on
O O
charges 6 and 7.
P P
44. Giving the defendants full credit for their pleas of guilty
Q reduces the sentence for D1 on each of charges 3, 6 and 7 to 2 years and 2 Q
months’ imprisonment and for D2 to 2 years and 4 months’ imprisonment
R R
on charges 6 and 7.
S S
T T
15
HKSAR v Baljit Singh at §11. Reasons for Sentence in DCCC 328/2017 at §5.
U U
V V
12
A A
B B
Totality
C C
45. In considering totality of sentence I have taken into account
D the co-operation of both defendants16. D
E E
D1
F F
46. In HKSAR v Chan Yip Chi the Court of Appeal upheld the
G judge’s order of a consecutive term of 7 months for the second offence. G
H H
47. I am satisfied the total sentence should reflect that three
I forged identity cards were involved. I am satisfied a total sentence of 2 I
years and 6 months’ imprisonment properly reflects D1’s overall criminal
J J
culpability on the conspiracy charges 3, 6 & 7.
K K
48. The forged identity card bearing D1’s photograph was in the
L L
name of Ng Ka Hoi, the name which D1 used to collect the forged
M
identity cards. I am satisfied a concurrent sentence is appropriate. M
N 49. I am satisfied D1 having overstayed before entering into the N
conspiracies adds to his culpability for which a consecutive sentence is
O O
appropriate making a total sentence of 2 years and 8 months’
P imprisonment. P
Q Q
50. I am satisfied a total sentence of 2 years and 8 months’
R imprisonment properly reflects D1’s criminality on the five charges and R
S S
T T
16
See §9.4 of the written mitigation submission of D1 and §§16-19 & 33 of the written mitigation
for D2.
U U
V V
13
A A
B B
takes into account D1’s personal circumstances and the seriousness of the
C offences17. C
D D2 D
E E
51. The WeChat messages clearly show two separate
F arrangements for the transfer of the forged identity cards and the F
obtaining of employment. I am satisfied a consecutive term of 2 months’
G G
imprisonment making a total sentence of 2 years and 6 months’
H imprisonment properly reflects D2’s overall criminal culpability on the H
conspiracy charges 6 & 7.
I I
52. I am satisfied that D2 having overstayed before entering into
J J
the conspiracies adds to his culpability for which a consecutive sentence
K
is appropriate making a total sentence of 2 years and 8 months’ K
L
imprisonment. L
M 53. The illegal work undertaken by D2 being the same as his role M
in the conspiracies, I am satisfied a concurrent sentence is appropriate for
N N
charge 5.
O O
54. I am satisfied a total sentence of 2 years and 8 months’
P P
imprisonment properly reflects D2’s criminality on the four charges and
Q takes into account D2’s personal circumstances and the seriousness of the Q
offences.
R R
S S
T T
17
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 as applied in HKSAR v Pau King Kong
[2013] 3 HKLRD 676.
U U
V V
14
A A
B B
Sentence
C C
55. The defendants are convicted and sentenced as follows:
D D
D1
E E
Charge 3 – 2 years and 2 months’ imprisonment;
F F
G Charge 6 – 2 years and 2 months’ imprisonment with 2 months G
consecutive and 2 years concurrent to charge 3
H H
Charge 7 – 2 years and 2 months’ imprisonment with 2 months
I I
consecutive and 2 years concurrent to charges 3 & 6;
J J
Charge 2 – 12 months’ imprisonment concurrent to charges 3, 6 & 7; and
K K
L
Charge 1 – 2 months’ imprisonment consecutive to charges 2, 3, 6 & 7. L
M The total sentence to be served by D1 is 2 years and 8 M
months’ imprisonment.
N N
O D2 O
P Charge 6 – 2 years and 4 months’ imprisonment; P
Q Q
Charge 7 – 2 years and 4 months’ imprisonment with 2 months
R consecutive and 2 years and 2 months concurrent to charge 6; R
S Charge 4 – 2 months’ imprisonment consecutive to charges 6 & 7; and S
T T
Charge 5 – 2 months’ imprisonment concurrent to charges 4, 6 & 7;
U U
V V
15
A A
B B
The total sentence to be served by D2 is 2 years and 8
C months’ imprisonment. C
D D
E E
(D. J. DUFTON)
F District Judge F
G G
H H
I 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
V V
DCCC454/2020 HKSAR v. LU YANBO AND ANOTHER - LawHero