DCCC507/2017 HKSAR v. KE LI XUE also known as KE LIBIN AND ANOTHER - LawHero
DCCC507/2017
HKSAR v. KE LI XUE also known as KE LIBIN AND ANOTHER
區域法院（刑事）Deputy District Judge A Yim11/10/2017
DCCC507/2017
A A
B B
DCCC 507/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 507 OF 2017 E
F F
---------------------
G HKSAR G
v
H H
KE LI XUE also known as KE LIBIN (D1)
I O LAI PUN also known as WU KIN FAN (D2) I
---------------------
J J
K Before: Deputy District Judge A Yim in court K
Date: 12 October 2017
L L
Present: Ms Ho Sui Kei, Public Prosecutor, for HKSAR
M Mr Chan Chung, instructed by Cheung & Yeung, assigned by M
the Director of Legal Aid, for the 1st and 2nd defendants
N N
Offences: [1]-[2] Conspiracy to make a false representation to an
O Immigration Assistant lawfully acting under or in the O
execution of Part II of the Immigration Ordinance (串謀向根
P P
據或為執行《入境條例》第 II 部而合法行事的入境事務助
Q Q
理員作出虛假的申述)
R [3]-[6] Making a false statement for the purpose of obtaining R
a document of identity (為取得簽證身分書而作出虛假的陳
S S
述)
T T
U U
V V
-2-
A A
B B
[7]-[24] Making a false representation to an Immigration
C Assistant lawfully acting under or in the execution of Part II C
of the Immigration Ordinance (向根據或為執行《入境條例》
D D
第 II 部而合法行事的入境事務助理員作出虛假的申述)
E [25]-[26] Making a false statement for the purpose of E
obtaining a travel document (為取得旅行證件而作出虛假
F F
的陳述)
G G
H -------------------------------------- H
REASONS FOR SENTENCE
I I
--------------------------------------
J J
1. The defendants were jointly charged for conspiracy to make a
K K
false representation to an Immigration Assistant contrary to section 42(1)(a)
L of the Immigration Ordinance, Cap 115 and section 159A of the Crimes L
Ordinance, Cap 200 and punishable under section 159C of the Crime
M M
Ordinance, Cap 200; while D2 was also charged for another conspiracy of
N similar nature. N
O O
2. And D1 and D2 were further charged for 11 and 13 counts of
P making false representation to an immigration assistant respectively related P
to their application for document of identity, passport and travelling in and
Q Q
out Hong Kong on the strength of their respective HKID bearing false Date
R of Birth. R
S S
3. The defendants pleaded guilty and admitted the facts, they
T T
were convicted accordingly.
U U
V V
-3-
A A
B B
FACTS
C C
4. An application for amendment of date of birth tendered by D1
D D
in April 2011 with an explanation that she filled in her sister D2’s date of
E birth by mistake triggered the investigation of the present case. On 3 July E
2015, an operation was conducted to located D1 and D2 for enquiry.
F F
G 5. The true identity of D2 was O Lai Pun and she was born on G
23 December 1966. In around 1995, her deceased father O Chi Chi bought
H H
a One-way Permit for her to settle in Hong Kong. D2 impersonated Wu
I Kin Fan and used the One-way Permit issued in the name of Wu Kin Fan I
with the date of birth as 18 September 1962 to settle in Hong Kong. On
J J
2 February 1995 she presented the said One-way Permit for arrival
K clearance in Hong Kong and settled in Hong Kong (Charge 1). K
L L
6. On 18 March 1995 D2 falsely stated her name as Wu Kin Fan
M with date of birth as 18 September 1962 for her application for Document M
of Identity in order to follow what was stated on her One-way Permit. A
N N
document of identity was issued to her on the same day (Charge 3).
O O
7. Subsequent to Charge 3, D2 changed her name back to
P P
O Lai Pun. On 12 March 2002 D2 had falsely stated that she was born on
Q 18 September 1962 in the application for a document of identity. A Q
document of identity was issued to her on the same day (Charge 4).
R R
S 8. On an unknown date between 1 January 2004 and 19 February S
2004, D2 intended to sponsor her son to settle in Hong Kong but she could
T T
not use her false identity for the sponsorship and she asked D1 to assume
U U
her identity and brought her son along for settlement. The true identity of
V V
-4-
A A
B B
D1 was Ke Lixue and she was born on 29 May 1959. D1 assumed D2’s
C identity to apply for a One-way Permit because she was aware that she was C
not eligible to apply one under her true identity. D2 arranged for D1’s
D D
settlement in Hong Kong. D1 impersonated D2 and used the One-way
E Permit issued in the name of D2 and with D2’s date of birth to settle in E
Hong Kong. On 19 February 2004 D1 presented the said One-way Permit
F F
for arrival clearance in Hong Kong together with D2’s son and settled in
G Hong Kong (Charge 2). G
H H
9. On 25 February 2004 D1 falsely stated her name as Ke Libin
I with date of birth as 23 December 1966 for her application for Document I
of Identity because she had assumed D2’s identity for the application for
J J
One-way Permit. A document of identity was issued to her on 5 March
K 2004 (Charge 5). K
L L
10. In 2005 D1 had changed her name back to Ke Lixue by deed
M poll. On 22 August 2005 she stated her date of birth as 23 December 1966 M
for her application for Document of Identity. A document of identity was
N N
issued to her on 31 August 2005 (Charge 6).
O O
11. Further Travel Index Check showed that D1 had entered and
P P
left Hong Kong on 8 occasions on the Hong Kong Identity Card under date
Q of birth as 23 December 1966 between 2 August 2007 and 22 October 2014 Q
via Immigration counter (Charges 7 – 14).
R R
S 12. Further Travel Index Check showed that D2 had entered and S
left Hong Kong on 10 occasions on the Hong Kong Identity Card under
T T
date of birth as 18 September 1962 between 9 March 2007 and 4 March
U
2015 via Immigration counter (Charges 15 – 24). U
V V
-5-
A A
B B
C 13. On 30 January 2012 D2 had falsely stated that she was born C
on 18 September 1962 in the application for a passport. The application
D D
was approved on the same day (Charge 25).
E E
14. On 12 June 2015 D1 had falsely stated that she was born on
F F
23 December 1966 in the application for a passport. The application was
G subsequently withdrawn (Charge 26). G
H H
MITIGATION
I I
D1
J J
K 15. The defendant aged 58 married, unemployed and lived with K
D2 in Hong Kong. She helped D2 to accompany her nephew (D2’s son)
L L
to Hong Kong in 2004. Her husband and son lived in mainland, she
M travelled frequently to mainland to stay with them after she settled in Hong M
Kong.
N N
O 16. D1 admitted that she conspired with D2 to impersonate D2 to O
apply for the One-way Permit but she did not know how in detail the
P P
application was processed. The defendant has a clear record, she indicated
Q her plea of guilty at the earliest opportunity and was remorse for the wrong Q
committed.
R R
S 17. It was submitted that D1 was unemployed but according to S
her son’s mitigation letter, D1 was the main financial support of the family
T T
and he relied on the mother’s financial assistance. If D1 was not working
U U
in Hong Kong she must have been working in mainland. This again hard
V V
-6-
A A
B B
to understand why she wanted to keep the false identity in Hong Kong after
C she successfully took the nephew into Hong Kong in 2004. She could have C
visited her family here by visitor permit.
D D
E 18. By her own mitigation letter D1 said she acted according to E
her father’s arrangement in 2004. To settle in Hong Kong was to make it
F F
convenience for her to visit her family in Hong Kong. She did not have a
G residence in Hong Kong, after arrest she needed to stay in Hong Kong and G
not able to return her home in mainland to take care her own grandchildren.
H H
She felt sorry that she caused her elderly mother to worry about her
I situation. She would not re-offend again. I
J J
D2
K K
19. The defendant aged 50 married with two children. She
L L
married her husband in 1992 and gave birth to the elder son in 1994, the
M nephew concerned in this case. After she settled in 1995 she changed her M
name back to O Lai Pun and gave birth to the younger son in October 1995.
N N
She used to work as a security guard and resigned because of the present
O offence. O
P P
20. D2 admitted that she conspired with her deceased father to
Q impersonate another person to gain entry and settlement in Hong Kong and Q
further conspired with D1 to get D1 impersonated her to apply for the One-
R R
way Permit together with her son but she did not know how in detail D1’s
S application was processed. The defendant has a clear record, she indicated S
her plea of guilty at the earliest opportunity and was remorse for the wrong
T T
committed.
U U
V V
-7-
A A
B B
21. By her own mitigation letter, D2 said to come by mean of false
C representation was very common back in 1990s. After settlement in Hong C
Kong she got herself gainfully employed. She had been co-operated with
D D
the Immigration Department. Her husband deserted the family 6 years ago
E and she was the main income earner of the family since then. Her remand E
would cause grave financial pressure to the sons.
F F
G 22. Family members also wrote mitigation letters for the G
defendants to show their support and urged the court for leniency and not
H H
to deport the defendants back to mainland. Deportation is a separate matter;
I I am here only to consider the sentence of the defendants in the present I
case.
J J
K 23. The family in mainland described the matter as “a problem K
with identification document”, it was not really so, it was a conspiracy to
L L
impersonate another person to defraud Immigration officer to gain entry
M and obtain permission to remain in Hong Kong. M
N N
24. It was easier to understand the first conspiracy back in 1995
O but hard to understand the necessity of the second conspiracy. Husband of O
D2 was a Hong Kong resident, he could have applied One-way Permit for
P P
the elder son on ground of family reunion. Further if D1 were to work and
Q live in mainland with her family as she alleged, D1 could have returned to Q
mainland and lived by her true identity after she accompanied the boy to
R R
Hong Kong.
S S
25. Mr Chan representing the defendants submitted that he also
T T
failed to obtain clear instruction as to why and how the defendants able to
U U
process the application related to D1. This showed the second conspiracy
V V
-8-
A A
B B
involved people other than the two defendants. D1 by her mitigation letter
C said it was arranged by her deceased father. It is noted, however, at time C
of the conspiracy(s), both defendants were married and mature adults.
D D
E SENTENCE E
F F
26. The prosecution confirmed this is the first case where
G defendant conspired with others to impersonate another person to gain G
entry and settled in Hong Kong by using One-way Permit issued in another
H H
person name and with another person’s personal particulars. In gist the
I defendants of the present case gained entry and obtained permission to I
remain in Hong Kong by fraud, namely an illegal mean.
J J
K 27. By section 42(4) of the Immigration Ordinance, the maximum K
sentence of an offence under this section upon conviction on indictment
L L
being a fine of $150,000 and imprisonment for 14 years. Whereas by
M contrast to section 38(1) of the Ordinance, the maximum sentence for M
remaining in Hong Kong illegally is a fine of $25,000 and imprisonment
N N
for 3 years. For long mainland residents who entered Hong Kong and
O remained here illegally was sentenced to 15 months’ imprisonment upon O
their own plea for their first conviction of the offence and expected to
P P
receive heavier sentence upon subsequent similar convictions.
Q Q
28. The line of cases of mainland residents gained entry and
R R
obtained permission to remain in Hong Kong via bogus marriage is
S example of another illegal mean to gained entry and obtained permission S
to settle in Hong Kong. In HKSAR v Kong Man Lun, Leslie
T T
HCMA731/2009 the appellant entered into two bogus marriages for
U
monetary rewards and provided documents necessary to “the wives” to U
V V
-9-
A A
B B
apply for their respective “Relative visit” exit endorsement facilitating “the
C wives” to come to Hong Kong. The appellant pleaded guilty to 2 charges C
of conspiracy to defraud and was sentenced to 12 months’ imprisonment
D D
for each charge, partly concurrent, making a total of 16 months’
E imprisonment. The appellant court after considering a number of E
authorities confirmed the starting point of 18 months was not wrong in
F F
principle but allowed reduction for mitigation not known to the sentencing
G magistrate. G
H H
29. In 香 港 特 别 行 政 區 訴 陳 雄 浩 HCMA 523/2012 the
I appellant entered into three bogus marriages for monetary rewards and I
provided documents necessary to “the wives” to apply for their respective
J J
“Relative visit” exit endorsement facilitating “the wives” to come to Hong
K Kong. The appellant pleaded guilty to 3 charges of conspiracy to defraud K
and was sentenced to 12 months’ imprisonment for each charge, partly
L L
concurrent, making a total of 18 months’ imprisonment. The appellant
M court after considering a number of authorities confirmed the starting point M
of 18 months and the overall sentence.
N N
O O
30. In HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, a
P
Filipino domestic helper used a false passport to enter Hong Kong and P
subsequently used the same false passport to apply for an extension of stay.
Q Q
She pleaded guilty to two offences of making false representation to an
R
immigration officer. Deputy Judge McMahon (as he then was) held that R
12 months’ imprisonment for each offence was appropriate.
S S
T 31. In a case of family reunion, HKSAR v Huang Dehui T
HCMA436/2009, the appellant pleaded guilty to an offence of conspiracy
U U
V V
- 10 -
A A
B B
to defraud for conspired with others to defraud the Immigration
C Department by dishonestly making a false representation that she and her C
husband were the natural parents of her niece who the couples had taken
D D
as their own child since the birth of the girl for the purpose of obtaining a
E Certificate of Entitlement for the said girl. The sentence was reduced on E
appeal from 12 months to 9 months upon the particular circumstances of
F F
the case.
G G
32. There were also cases about making false representation to
H H
gain entry or extension of stay. In HKSAR v Kamissoko Mahamadou
I HCMA714/2008, the appellant pleaded guilty to one charge of using a false I
travel document and one charge of making a false representation to an
J J
Immigration officer and was sentenced to 8 months’ imprisonment on each
K charge to be run concurrent. The appellant presented his Malian passport K
together with an expired Malian passport, each of which bore the same
L L
false date of birth to the Immigration officer upon arrival from Macau to
M gain entry as a visitor. He had entered Hong Kong with false passport more M
than 20 times between June 2003 and his arrest in 2008. The appeal court
N N
considered the sentence can be regarded as lenient and confirmed it.
O O
33. In the case of Kamissoko Mahamadou the magistrate referred
P P
to The Queen v Wang Ju Wen [1989] 2 HKLR 26, in which the defendant
Q pleaded guilty to possession and use of a false passport was sentenced to Q
18 months’ imprisonment. That case involved a businessman using 2 false
R R
passports on 16 occasions to facilitate his business travel.
S S
34. Though the ultimate motive of the defendants was to gain
T T
family reunion in the case of D2 or to visit family in Hong Kong as claimed
U U
by D1 in her mitigation letter, yet they chose to by-pass the legal
V V
- 11 -
A A
B B
application which was available to them. I was told this was the first case
C of this nature, but D2 said in her mitigation letter that this kind of fraudulent C
mean was common in the 1990s, if D2’s observation was right, this showed
D D
cases of this nature were difficult to detect. With the first conspiracy
E worked well, the sisters perpetrated the second conspiracy in 2004. It took E
the Immigration Department 4 years to investigate this case before the
F F
defendants were invited for enquiry. Clear message must be sent to the
G public that the court will not condone offences of this nature. G
H H
35. According to the facts admitted monetary reward had been
I offered to buy the One-way Permit of Wu in around 1995, that factor gives I
rise to the similarity with conspiracy to enter bogus marriage for monetary
J J
rewards. As to the second conspiracy in 2004, though both defendants
K were not able to account in details the process of the application of the said K
One-way Permit, it must have been obtained by fraud. The second
L L
conspiracy enabled D1 who was not eligible for One-way Permit to gain
M entry and settle in Hong Kong during the last 10 years. For each of the M
conspiracy, bearing in mind that the defendants were each of clear record,
N N
I consider the appropriate starting point to be one of 18 months’
O imprisonment. O
P P
36. Since then the defendants continued to impersonate another
Q person and made false representations to Immigration Officer in applying Q
Document of Identity and passport, and when they went through
R R
Immigration clearance. For the consequential offences of false
S representation, I consider the appropriate starting point to be one of S
12 months’ imprisonment. To further her stay in Hong Kong, D1 has
T T
impersonated another person over 10 years from 2004 to 2015, while D2
U U
has impersonated another person over 20 years from 1995 to 2015. The
V V
- 12 -
A A
B B
overall culpability in case of D1 warrants a starting point of 30 months
C while the overall culpability in case of D2 warrants a starting point of C
39 months.
D D
E 37. The defendants indicated their plea of guilty in the earliest E
opportunity and entitled to 1/3 discount. Further, as mentioned above
F F
offence of this nature was difficult to detect and I consider the remorse and
G co-operating altitude of the defendants warrant a higher discount in G
sentence, and I would allow them up to 45% discount respectively.
H H
However, I do not consider there to be any mitigating factors that call for
I further reduction. Taking into account of the totality principle, the sentence I
of the defendants will run partly concurrent and partly consecutive making
J J
a total of 16 months in the case of D1 and 21 months in the case of D2.
K K
ORDER
L L
M D1 M
N N
Charge 2 sentenced to 10 months’ imprisonment;
O Charge 5 & 6 each sentenced to 6 months 2 weeks’ imprisonment, O
concurrent with each other, while 2 months of which
P P
consecutive to other charges;
Q Charge 7 – 14 each sentenced to 6 months 2 weeks’ imprisonment, Q
concurrent with each other, while 3 months of which
R R
consecutive to other charges;
S Charge 26 sentenced to 6 months 2 weeks’ imprisonment, 1 month S
of which consecutive to other charges,
T T
making a total of 16 months.
U U
V V
- 13 -
A A
B B
D2
C C
Charge 1 sentenced to 10 months’ imprisonment;
D D
Charge 2 sentenced to 10 months’ imprisonment, 5 months of
E which consecutive to each other charges; E
Charge 3 & 4 each sentenced to 6 months 2 weeks’ imprisonment,
F F
concurrent with each other, while 2 months of which
G consecutive to other charges; G
Charge 15 – 24 each sentenced to 6 months 2 weeks’ imprisonment,
H H
concurrent with each other, while 3 months of which
I consecutive to other charges; I
Charge 25 sentenced to 6 months 2 weeks’ imprisonment, 1 month
J J
of which consecutive to other charges,
K making a total of 21 months. K
L L
M M
N N
O ( A Yim ) O
Deputy District Judge
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 507/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 507 OF 2017 E
F F
---------------------
G HKSAR G
v
H H
KE LI XUE also known as KE LIBIN (D1)
I O LAI PUN also known as WU KIN FAN (D2) I
---------------------
J J
K Before: Deputy District Judge A Yim in court K
Date: 12 October 2017
L L
Present: Ms Ho Sui Kei, Public Prosecutor, for HKSAR
M Mr Chan Chung, instructed by Cheung & Yeung, assigned by M
the Director of Legal Aid, for the 1st and 2nd defendants
N N
Offences: [1]-[2] Conspiracy to make a false representation to an
O Immigration Assistant lawfully acting under or in the O
execution of Part II of the Immigration Ordinance (串謀向根
P P
據或為執行《入境條例》第 II 部而合法行事的入境事務助
Q Q
理員作出虛假的申述)
R [3]-[6] Making a false statement for the purpose of obtaining R
a document of identity (為取得簽證身分書而作出虛假的陳
S S
述)
T T
U U
V V
-2-
A A
B B
[7]-[24] Making a false representation to an Immigration
C Assistant lawfully acting under or in the execution of Part II C
of the Immigration Ordinance (向根據或為執行《入境條例》
D D
第 II 部而合法行事的入境事務助理員作出虛假的申述)
E [25]-[26] Making a false statement for the purpose of E
obtaining a travel document (為取得旅行證件而作出虛假
F F
的陳述)
G G
H -------------------------------------- H
REASONS FOR SENTENCE
I I
--------------------------------------
J J
1. The defendants were jointly charged for conspiracy to make a
K K
false representation to an Immigration Assistant contrary to section 42(1)(a)
L of the Immigration Ordinance, Cap 115 and section 159A of the Crimes L
Ordinance, Cap 200 and punishable under section 159C of the Crime
M M
Ordinance, Cap 200; while D2 was also charged for another conspiracy of
N similar nature. N
O O
2. And D1 and D2 were further charged for 11 and 13 counts of
P making false representation to an immigration assistant respectively related P
to their application for document of identity, passport and travelling in and
Q Q
out Hong Kong on the strength of their respective HKID bearing false Date
R of Birth. R
S S
3. The defendants pleaded guilty and admitted the facts, they
T T
were convicted accordingly.
U U
V V
-3-
A A
B B
FACTS
C C
4. An application for amendment of date of birth tendered by D1
D D
in April 2011 with an explanation that she filled in her sister D2’s date of
E birth by mistake triggered the investigation of the present case. On 3 July E
2015, an operation was conducted to located D1 and D2 for enquiry.
F F
G 5. The true identity of D2 was O Lai Pun and she was born on G
23 December 1966. In around 1995, her deceased father O Chi Chi bought
H H
a One-way Permit for her to settle in Hong Kong. D2 impersonated Wu
I Kin Fan and used the One-way Permit issued in the name of Wu Kin Fan I
with the date of birth as 18 September 1962 to settle in Hong Kong. On
J J
2 February 1995 she presented the said One-way Permit for arrival
K clearance in Hong Kong and settled in Hong Kong (Charge 1). K
L L
6. On 18 March 1995 D2 falsely stated her name as Wu Kin Fan
M with date of birth as 18 September 1962 for her application for Document M
of Identity in order to follow what was stated on her One-way Permit. A
N N
document of identity was issued to her on the same day (Charge 3).
O O
7. Subsequent to Charge 3, D2 changed her name back to
P P
O Lai Pun. On 12 March 2002 D2 had falsely stated that she was born on
Q 18 September 1962 in the application for a document of identity. A Q
document of identity was issued to her on the same day (Charge 4).
R R
S 8. On an unknown date between 1 January 2004 and 19 February S
2004, D2 intended to sponsor her son to settle in Hong Kong but she could
T T
not use her false identity for the sponsorship and she asked D1 to assume
U U
her identity and brought her son along for settlement. The true identity of
V V
-4-
A A
B B
D1 was Ke Lixue and she was born on 29 May 1959. D1 assumed D2’s
C identity to apply for a One-way Permit because she was aware that she was C
not eligible to apply one under her true identity. D2 arranged for D1’s
D D
settlement in Hong Kong. D1 impersonated D2 and used the One-way
E Permit issued in the name of D2 and with D2’s date of birth to settle in E
Hong Kong. On 19 February 2004 D1 presented the said One-way Permit
F F
for arrival clearance in Hong Kong together with D2’s son and settled in
G Hong Kong (Charge 2). G
H H
9. On 25 February 2004 D1 falsely stated her name as Ke Libin
I with date of birth as 23 December 1966 for her application for Document I
of Identity because she had assumed D2’s identity for the application for
J J
One-way Permit. A document of identity was issued to her on 5 March
K 2004 (Charge 5). K
L L
10. In 2005 D1 had changed her name back to Ke Lixue by deed
M poll. On 22 August 2005 she stated her date of birth as 23 December 1966 M
for her application for Document of Identity. A document of identity was
N N
issued to her on 31 August 2005 (Charge 6).
O O
11. Further Travel Index Check showed that D1 had entered and
P P
left Hong Kong on 8 occasions on the Hong Kong Identity Card under date
Q of birth as 23 December 1966 between 2 August 2007 and 22 October 2014 Q
via Immigration counter (Charges 7 – 14).
R R
S 12. Further Travel Index Check showed that D2 had entered and S
left Hong Kong on 10 occasions on the Hong Kong Identity Card under
T T
date of birth as 18 September 1962 between 9 March 2007 and 4 March
U
2015 via Immigration counter (Charges 15 – 24). U
V V
-5-
A A
B B
C 13. On 30 January 2012 D2 had falsely stated that she was born C
on 18 September 1962 in the application for a passport. The application
D D
was approved on the same day (Charge 25).
E E
14. On 12 June 2015 D1 had falsely stated that she was born on
F F
23 December 1966 in the application for a passport. The application was
G subsequently withdrawn (Charge 26). G
H H
MITIGATION
I I
D1
J J
K 15. The defendant aged 58 married, unemployed and lived with K
D2 in Hong Kong. She helped D2 to accompany her nephew (D2’s son)
L L
to Hong Kong in 2004. Her husband and son lived in mainland, she
M travelled frequently to mainland to stay with them after she settled in Hong M
Kong.
N N
O 16. D1 admitted that she conspired with D2 to impersonate D2 to O
apply for the One-way Permit but she did not know how in detail the
P P
application was processed. The defendant has a clear record, she indicated
Q her plea of guilty at the earliest opportunity and was remorse for the wrong Q
committed.
R R
S 17. It was submitted that D1 was unemployed but according to S
her son’s mitigation letter, D1 was the main financial support of the family
T T
and he relied on the mother’s financial assistance. If D1 was not working
U U
in Hong Kong she must have been working in mainland. This again hard
V V
-6-
A A
B B
to understand why she wanted to keep the false identity in Hong Kong after
C she successfully took the nephew into Hong Kong in 2004. She could have C
visited her family here by visitor permit.
D D
E 18. By her own mitigation letter D1 said she acted according to E
her father’s arrangement in 2004. To settle in Hong Kong was to make it
F F
convenience for her to visit her family in Hong Kong. She did not have a
G residence in Hong Kong, after arrest she needed to stay in Hong Kong and G
not able to return her home in mainland to take care her own grandchildren.
H H
She felt sorry that she caused her elderly mother to worry about her
I situation. She would not re-offend again. I
J J
D2
K K
19. The defendant aged 50 married with two children. She
L L
married her husband in 1992 and gave birth to the elder son in 1994, the
M nephew concerned in this case. After she settled in 1995 she changed her M
name back to O Lai Pun and gave birth to the younger son in October 1995.
N N
She used to work as a security guard and resigned because of the present
O offence. O
P P
20. D2 admitted that she conspired with her deceased father to
Q impersonate another person to gain entry and settlement in Hong Kong and Q
further conspired with D1 to get D1 impersonated her to apply for the One-
R R
way Permit together with her son but she did not know how in detail D1’s
S application was processed. The defendant has a clear record, she indicated S
her plea of guilty at the earliest opportunity and was remorse for the wrong
T T
committed.
U U
V V
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A A
B B
21. By her own mitigation letter, D2 said to come by mean of false
C representation was very common back in 1990s. After settlement in Hong C
Kong she got herself gainfully employed. She had been co-operated with
D D
the Immigration Department. Her husband deserted the family 6 years ago
E and she was the main income earner of the family since then. Her remand E
would cause grave financial pressure to the sons.
F F
G 22. Family members also wrote mitigation letters for the G
defendants to show their support and urged the court for leniency and not
H H
to deport the defendants back to mainland. Deportation is a separate matter;
I I am here only to consider the sentence of the defendants in the present I
case.
J J
K 23. The family in mainland described the matter as “a problem K
with identification document”, it was not really so, it was a conspiracy to
L L
impersonate another person to defraud Immigration officer to gain entry
M and obtain permission to remain in Hong Kong. M
N N
24. It was easier to understand the first conspiracy back in 1995
O but hard to understand the necessity of the second conspiracy. Husband of O
D2 was a Hong Kong resident, he could have applied One-way Permit for
P P
the elder son on ground of family reunion. Further if D1 were to work and
Q live in mainland with her family as she alleged, D1 could have returned to Q
mainland and lived by her true identity after she accompanied the boy to
R R
Hong Kong.
S S
25. Mr Chan representing the defendants submitted that he also
T T
failed to obtain clear instruction as to why and how the defendants able to
U U
process the application related to D1. This showed the second conspiracy
V V
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A A
B B
involved people other than the two defendants. D1 by her mitigation letter
C said it was arranged by her deceased father. It is noted, however, at time C
of the conspiracy(s), both defendants were married and mature adults.
D D
E SENTENCE E
F F
26. The prosecution confirmed this is the first case where
G defendant conspired with others to impersonate another person to gain G
entry and settled in Hong Kong by using One-way Permit issued in another
H H
person name and with another person’s personal particulars. In gist the
I defendants of the present case gained entry and obtained permission to I
remain in Hong Kong by fraud, namely an illegal mean.
J J
K 27. By section 42(4) of the Immigration Ordinance, the maximum K
sentence of an offence under this section upon conviction on indictment
L L
being a fine of $150,000 and imprisonment for 14 years. Whereas by
M contrast to section 38(1) of the Ordinance, the maximum sentence for M
remaining in Hong Kong illegally is a fine of $25,000 and imprisonment
N N
for 3 years. For long mainland residents who entered Hong Kong and
O remained here illegally was sentenced to 15 months’ imprisonment upon O
their own plea for their first conviction of the offence and expected to
P P
receive heavier sentence upon subsequent similar convictions.
Q Q
28. The line of cases of mainland residents gained entry and
R R
obtained permission to remain in Hong Kong via bogus marriage is
S example of another illegal mean to gained entry and obtained permission S
to settle in Hong Kong. In HKSAR v Kong Man Lun, Leslie
T T
HCMA731/2009 the appellant entered into two bogus marriages for
U
monetary rewards and provided documents necessary to “the wives” to U
V V
-9-
A A
B B
apply for their respective “Relative visit” exit endorsement facilitating “the
C wives” to come to Hong Kong. The appellant pleaded guilty to 2 charges C
of conspiracy to defraud and was sentenced to 12 months’ imprisonment
D D
for each charge, partly concurrent, making a total of 16 months’
E imprisonment. The appellant court after considering a number of E
authorities confirmed the starting point of 18 months was not wrong in
F F
principle but allowed reduction for mitigation not known to the sentencing
G magistrate. G
H H
29. In 香 港 特 别 行 政 區 訴 陳 雄 浩 HCMA 523/2012 the
I appellant entered into three bogus marriages for monetary rewards and I
provided documents necessary to “the wives” to apply for their respective
J J
“Relative visit” exit endorsement facilitating “the wives” to come to Hong
K Kong. The appellant pleaded guilty to 3 charges of conspiracy to defraud K
and was sentenced to 12 months’ imprisonment for each charge, partly
L L
concurrent, making a total of 18 months’ imprisonment. The appellant
M court after considering a number of authorities confirmed the starting point M
of 18 months and the overall sentence.
N N
O O
30. In HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, a
P
Filipino domestic helper used a false passport to enter Hong Kong and P
subsequently used the same false passport to apply for an extension of stay.
Q Q
She pleaded guilty to two offences of making false representation to an
R
immigration officer. Deputy Judge McMahon (as he then was) held that R
12 months’ imprisonment for each offence was appropriate.
S S
T 31. In a case of family reunion, HKSAR v Huang Dehui T
HCMA436/2009, the appellant pleaded guilty to an offence of conspiracy
U U
V V
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A A
B B
to defraud for conspired with others to defraud the Immigration
C Department by dishonestly making a false representation that she and her C
husband were the natural parents of her niece who the couples had taken
D D
as their own child since the birth of the girl for the purpose of obtaining a
E Certificate of Entitlement for the said girl. The sentence was reduced on E
appeal from 12 months to 9 months upon the particular circumstances of
F F
the case.
G G
32. There were also cases about making false representation to
H H
gain entry or extension of stay. In HKSAR v Kamissoko Mahamadou
I HCMA714/2008, the appellant pleaded guilty to one charge of using a false I
travel document and one charge of making a false representation to an
J J
Immigration officer and was sentenced to 8 months’ imprisonment on each
K charge to be run concurrent. The appellant presented his Malian passport K
together with an expired Malian passport, each of which bore the same
L L
false date of birth to the Immigration officer upon arrival from Macau to
M gain entry as a visitor. He had entered Hong Kong with false passport more M
than 20 times between June 2003 and his arrest in 2008. The appeal court
N N
considered the sentence can be regarded as lenient and confirmed it.
O O
33. In the case of Kamissoko Mahamadou the magistrate referred
P P
to The Queen v Wang Ju Wen [1989] 2 HKLR 26, in which the defendant
Q pleaded guilty to possession and use of a false passport was sentenced to Q
18 months’ imprisonment. That case involved a businessman using 2 false
R R
passports on 16 occasions to facilitate his business travel.
S S
34. Though the ultimate motive of the defendants was to gain
T T
family reunion in the case of D2 or to visit family in Hong Kong as claimed
U U
by D1 in her mitigation letter, yet they chose to by-pass the legal
V V
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A A
B B
application which was available to them. I was told this was the first case
C of this nature, but D2 said in her mitigation letter that this kind of fraudulent C
mean was common in the 1990s, if D2’s observation was right, this showed
D D
cases of this nature were difficult to detect. With the first conspiracy
E worked well, the sisters perpetrated the second conspiracy in 2004. It took E
the Immigration Department 4 years to investigate this case before the
F F
defendants were invited for enquiry. Clear message must be sent to the
G public that the court will not condone offences of this nature. G
H H
35. According to the facts admitted monetary reward had been
I offered to buy the One-way Permit of Wu in around 1995, that factor gives I
rise to the similarity with conspiracy to enter bogus marriage for monetary
J J
rewards. As to the second conspiracy in 2004, though both defendants
K were not able to account in details the process of the application of the said K
One-way Permit, it must have been obtained by fraud. The second
L L
conspiracy enabled D1 who was not eligible for One-way Permit to gain
M entry and settle in Hong Kong during the last 10 years. For each of the M
conspiracy, bearing in mind that the defendants were each of clear record,
N N
I consider the appropriate starting point to be one of 18 months’
O imprisonment. O
P P
36. Since then the defendants continued to impersonate another
Q person and made false representations to Immigration Officer in applying Q
Document of Identity and passport, and when they went through
R R
Immigration clearance. For the consequential offences of false
S representation, I consider the appropriate starting point to be one of S
12 months’ imprisonment. To further her stay in Hong Kong, D1 has
T T
impersonated another person over 10 years from 2004 to 2015, while D2
U U
has impersonated another person over 20 years from 1995 to 2015. The
V V
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A A
B B
overall culpability in case of D1 warrants a starting point of 30 months
C while the overall culpability in case of D2 warrants a starting point of C
39 months.
D D
E 37. The defendants indicated their plea of guilty in the earliest E
opportunity and entitled to 1/3 discount. Further, as mentioned above
F F
offence of this nature was difficult to detect and I consider the remorse and
G co-operating altitude of the defendants warrant a higher discount in G
sentence, and I would allow them up to 45% discount respectively.
H H
However, I do not consider there to be any mitigating factors that call for
I further reduction. Taking into account of the totality principle, the sentence I
of the defendants will run partly concurrent and partly consecutive making
J J
a total of 16 months in the case of D1 and 21 months in the case of D2.
K K
ORDER
L L
M D1 M
N N
Charge 2 sentenced to 10 months’ imprisonment;
O Charge 5 & 6 each sentenced to 6 months 2 weeks’ imprisonment, O
concurrent with each other, while 2 months of which
P P
consecutive to other charges;
Q Charge 7 – 14 each sentenced to 6 months 2 weeks’ imprisonment, Q
concurrent with each other, while 3 months of which
R R
consecutive to other charges;
S Charge 26 sentenced to 6 months 2 weeks’ imprisonment, 1 month S
of which consecutive to other charges,
T T
making a total of 16 months.
U U
V V
- 13 -
A A
B B
D2
C C
Charge 1 sentenced to 10 months’ imprisonment;
D D
Charge 2 sentenced to 10 months’ imprisonment, 5 months of
E which consecutive to each other charges; E
Charge 3 & 4 each sentenced to 6 months 2 weeks’ imprisonment,
F F
concurrent with each other, while 2 months of which
G consecutive to other charges; G
Charge 15 – 24 each sentenced to 6 months 2 weeks’ imprisonment,
H H
concurrent with each other, while 3 months of which
I consecutive to other charges; I
Charge 25 sentenced to 6 months 2 weeks’ imprisonment, 1 month
J J
of which consecutive to other charges,
K making a total of 21 months. K
L L
M M
N N
O ( A Yim ) O
Deputy District Judge
P P
Q Q
R R
S S
T T
U U
V V