區域法院（刑事）Deputy District Judge Kathie Cheung2/9/2018[2018] HKDC 1092
DCCC75/2018
A A
B B
DCCC 75/2018
C [2018] HKDC 1092 C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 75 OF 2018 E
----------------
F F
G HKSAR G
v
H H
LEE JOONHO Defendant
I I
----------------
J J
Before: Deputy District Judge Kathie Cheung
K Date: 3 September 2018 K
Present: Miss. Iva Lo, Public Prosecutor of Department of Justice,
L L
for HKSAR
M Ms. Munira Moosdeen, instructed by M/s Tsang, Chan & M
Woo, assigned by DLA, for the defendant
N N
Offences: [1] Making a false representation to an Immigration Assistant
O lawfully acting under or in the execution of Part II of the O
Immigration Ordinance（向根據或為執行《入境條例》第
P P
II 部而合法行事的入境事務助理員作出虛假的申述）
Q Q
[2] Conspiracy to obtain services by deception（串謀以欺騙
R 手段取得服務） R
--------------------------------------
S S
REASONS FOR SENTENCE
T T
--------------------------------------
U U
V V
- 2 -
A A
B 1. The defendant pleaded guilty to one count of “making a false B
representation to an Immigration Assistant”, contrary to section 42(1)(a) of
C C
the Immigration Ordinance, Cap. 115 and one count of “conspiracy to
D obtain services by deception”, contrary to section 18A(1) of the Theft D
Ordinance, Cap. 210 and sections 159A and 159C of the Crimes Ordinance,
E E
Cap. 200.
F F
Facts
G G
H 2. On 25 December 2011, the defendant was instructed by a person H
known as “Mr Zheng” to obtain a boarding pass to Sydney by using the
I I
particulars on his Korean passport and he would be given a return ticket to
J Shanghai as reward. J
K K
3. On 28 December 2011, the defendant showed Chu Chun-wai,
L L
Acting Senior Immigration Assistant, his passport and boarding pass for
M
flight to Sydney even though his destination was Shanghai. After the M
defendant entered the restricted area, he deposited his boarding pass for
N N
Sydney in a male toilet as instructed by Mr Zheng and waited for the flight
O to Sydney to take off before boarding a flight to Shanghai. O
P P
4. The defendant was arrested on 14 November 2017 when he
Q arrived at Hong Kong. Under caution, he admitted receiving instructions Q
from Mr Zheng to obtain a boarding pass to Sydney using his Korean
R R
passport details, that he went to the check-in counter on 28 December 2011
S and obtained a boarding pass to Sydney, that he showed his passport and S
boarding pass for Sydney to counter officer even though his final
T T
destination was Shanghai, that he deposited his boarding pass for Sydney
U U
V V
- 3 -
A A
B in a male toilet as instructed by Mr Zheng, that he did not know who had B
collected or used his boarding pass for Sydney and he obtained a free
C C
return ticket to Shanghai as reward.
D D
Mitigation
E E
F 5. The defendant is aged 50 and was born in Korea. He was F
educated up to Form 2 level. He is married with 3 children. He lived with
G G
his wife, 3 children and his parents in Korea and worked as construction
H worker prior to the arrest. He has a clear record. H
I I
6. In mitigation, it was revealed that he worked for a company in
J Hong Kong between 2009 and 2011. At that time, he was asked to register J
himself as director of that company, which he did so. He did not receive
K K
salary for 8 months when working for the company and he was in deep
L L
financial trouble. At that time, he was looking for jobs and was referred to
M
Mr Zheng. He had never seen Mr Zheng. He only communicated with him M
via telephone. He came to Hong Kong on 25 December 2011 and he
N N
received instruction from Mr Zheng on 28 December 2011. He was
O offered return tickets for getting boarding pass in this case. He did not O
know the plan. After that, in 2012, he was able to formally withdraw from
P P
the company and he returned to Korea. Since then, he worked as a
Q construction worker. He was arrested when he came to Hong Kong again Q
with his family for sightseeing.
R R
S 7. Counsel for the defence submitted that no false or forged travel S
document was involved. The defendant did not know about the plan. He
T T
only wanted to have the return ticket to Shanghai to see if there was any job
U U
V V
- 4 -
A A
B opportunity in China. He had no monetary gain. Counsel referred to B
several cases1 and submitted that these cases were for reference only as the
C C
present case did not involve human trafficking. Counsel also submitted
D that there was no allegation of a bigger scheme in the Summary of Facts D
and the court should not speculate. The court was urged to impose lenient
E E
and concurrent sentences on the defendant given his plea, his limited role
F and that he has been remanded since November 2017. F
G G
Sentence
H H
8. Counsel for the defence submitted that there was no evidence of
I I
a scheme of human trafficking. I disagree. Based upon the facts admitted,
J the defendant came to Hong Kong and used his own particulars to obtain a J
boarding pass, which he knew he would not use but would be passed to
K K
others. As an adult with normal intelligence, he must have known that the
L L
use of a boarding pass is to entitle the holder of it to board the flight
M
specified therein. If his boarding pass were to be passed to someone else, M
then it must be the case that someone would use the boarding pass by
N N
falsely representing that he was the defendant. Therefore, based on the
O facts admitted, I find the only irresistible inference is that what the O
defendant did was part and parcel of a scheme of human trafficking. Of
P P
course, I accept there is no evidence of the size of the scheme.
Q Q
9. There is no sentencing guideline in respect of human trafficking.
R R
10. In HKSAR v Cheng Kwong Chung & Ors, CACC 536/2001, the
S S
Court of Appeal stated at paragraph 51:
T T
1
HKSAR v He Wen You [2009] 3 HKLRD 445; HKSAR v Li Xiao Feng, HCMA 286/2003;
HKSAR v Ye Ying, HCMA 184/2003 and HKSAR v Xue Xiaoming, HCMA 54/2004
U U
V V
- 5 -
A A
B B
C
“We take the view that offences such as these are very serious. … the C
offences deliberately seek not only to undermine Hong Kong’s laws but
D D
also the immigrations laws of other jurisdictions, and to enable persons to
E
travel on aircraft when they are not authorized to do so. It hardly needs to E
be emphasized that conduct of this kind is to be treated by our courts with a
F F
firm hand, not least when air security and international immigration
G controls carry an importance greater than ever before.” G
H H
11. In HKSAR v He Wenyou [2009] 3 HKLRD 445, the Court of
I I
Appeal said at paragraph 9:
J J
K
“We must point out that a higher starting point is applicable to this kind of K
cases, which clearly involve sophisticated planning and arrangement.
L L
Making use of Hong Kong’s position as a hub of communications,
M offenders assist illegal immigrants in entering a third country. By means of M
a fraudulent scheme, offenders help illegal immigrants enter the restricted
N N
area of the Hong Kong International Airport, where they then use false
O boarding passes to board flights bound for a third country. Upon arrival in O
that country, they will use false identity documents for gaining entry into
P P
that country. These activities will obviously tarnish Hong Kong’s
Q international reputation. Furthermore, as a result of those activities, Q
immigration authorities of foreign countries will become wary of visitors
R R
from Hong Kong even when they are holding lawful travel documents,
S which means that visitors from Hong Kong will have to suffer a certain S
degree of inconvenience when they enter those countries. Severe, deterrent
T T
sentences must therefore be imposed for those offences.”
U U
V V
- 6 -
A A
B 12. In that case, the Court of Appeal confirmed that there was B
difference in the culpability of those who plotted or carried out the scheme
C C
and that of the illegal immigrants who took part in the scheme. The Court
D of Appeal considered the former to be more culpable. The applicant in that D
case was an illegal immigrant taking part in the scheme. The Court of
E E
Appeal considered 32 months to be the appropriate starting point.
F F
13. In the present case, the defendant was not the person being
G G
trafficked. Whilst I accept the defendant was not the mastermind behind
H the scheme, he was somehow recruited to assist in the implementation of H
the scheme. Without the defendant’s cooperation, the conspiracy would
I I
collapse. He was essential to the conspiracy’s successful implementation.
J J
14. In view of the above authorities and taking into consideration the
K K
background of the defendant and the facts of the case, I consider the
L
appropriate starting point to be 3 years’ imprisonment for each count. L
M
Given the defendant’s guilty plea, the sentence is reduced to 2 years’ M
imprisonment for each count. Family hardship is generally not a
N N
mitigating factor. Apart from the defendant’s plea, I do not see other
O mitigating factor justifying further reduction of sentence. Having O
considered the totality principle and the fact that the two offences arose
P P
from the same incident, I order the sentences for the two charges to run
Q concurrently. The defendant is therefore sentenced to a total sentence of 2 Q
years’ imprisonment.
R R
S S
(Kathie Cheung)
T Deputy District Judge T
U U
V V
A A
B B
DCCC 75/2018
C [2018] HKDC 1092 C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 75 OF 2018 E
----------------
F F
G HKSAR G
v
H H
LEE JOONHO Defendant
I I
----------------
J J
Before: Deputy District Judge Kathie Cheung
K Date: 3 September 2018 K
Present: Miss. Iva Lo, Public Prosecutor of Department of Justice,
L L
for HKSAR
M Ms. Munira Moosdeen, instructed by M/s Tsang, Chan & M
Woo, assigned by DLA, for the defendant
N N
Offences: [1] Making a false representation to an Immigration Assistant
O lawfully acting under or in the execution of Part II of the O
Immigration Ordinance（向根據或為執行《入境條例》第
P P
II 部而合法行事的入境事務助理員作出虛假的申述）
Q Q
[2] Conspiracy to obtain services by deception（串謀以欺騙
R 手段取得服務） R
--------------------------------------
S S
REASONS FOR SENTENCE
T T
--------------------------------------
U U
V V
- 2 -
A A
B 1. The defendant pleaded guilty to one count of “making a false B
representation to an Immigration Assistant”, contrary to section 42(1)(a) of
C C
the Immigration Ordinance, Cap. 115 and one count of “conspiracy to
D obtain services by deception”, contrary to section 18A(1) of the Theft D
Ordinance, Cap. 210 and sections 159A and 159C of the Crimes Ordinance,
E E
Cap. 200.
F F
Facts
G G
H 2. On 25 December 2011, the defendant was instructed by a person H
known as “Mr Zheng” to obtain a boarding pass to Sydney by using the
I I
particulars on his Korean passport and he would be given a return ticket to
J Shanghai as reward. J
K K
3. On 28 December 2011, the defendant showed Chu Chun-wai,
L L
Acting Senior Immigration Assistant, his passport and boarding pass for
M
flight to Sydney even though his destination was Shanghai. After the M
defendant entered the restricted area, he deposited his boarding pass for
N N
Sydney in a male toilet as instructed by Mr Zheng and waited for the flight
O to Sydney to take off before boarding a flight to Shanghai. O
P P
4. The defendant was arrested on 14 November 2017 when he
Q arrived at Hong Kong. Under caution, he admitted receiving instructions Q
from Mr Zheng to obtain a boarding pass to Sydney using his Korean
R R
passport details, that he went to the check-in counter on 28 December 2011
S and obtained a boarding pass to Sydney, that he showed his passport and S
boarding pass for Sydney to counter officer even though his final
T T
destination was Shanghai, that he deposited his boarding pass for Sydney
U U
V V
- 3 -
A A
B in a male toilet as instructed by Mr Zheng, that he did not know who had B
collected or used his boarding pass for Sydney and he obtained a free
C C
return ticket to Shanghai as reward.
D D
Mitigation
E E
F 5. The defendant is aged 50 and was born in Korea. He was F
educated up to Form 2 level. He is married with 3 children. He lived with
G G
his wife, 3 children and his parents in Korea and worked as construction
H worker prior to the arrest. He has a clear record. H
I I
6. In mitigation, it was revealed that he worked for a company in
J Hong Kong between 2009 and 2011. At that time, he was asked to register J
himself as director of that company, which he did so. He did not receive
K K
salary for 8 months when working for the company and he was in deep
L L
financial trouble. At that time, he was looking for jobs and was referred to
M
Mr Zheng. He had never seen Mr Zheng. He only communicated with him M
via telephone. He came to Hong Kong on 25 December 2011 and he
N N
received instruction from Mr Zheng on 28 December 2011. He was
O offered return tickets for getting boarding pass in this case. He did not O
know the plan. After that, in 2012, he was able to formally withdraw from
P P
the company and he returned to Korea. Since then, he worked as a
Q construction worker. He was arrested when he came to Hong Kong again Q
with his family for sightseeing.
R R
S 7. Counsel for the defence submitted that no false or forged travel S
document was involved. The defendant did not know about the plan. He
T T
only wanted to have the return ticket to Shanghai to see if there was any job
U U
V V
- 4 -
A A
B opportunity in China. He had no monetary gain. Counsel referred to B
several cases1 and submitted that these cases were for reference only as the
C C
present case did not involve human trafficking. Counsel also submitted
D that there was no allegation of a bigger scheme in the Summary of Facts D
and the court should not speculate. The court was urged to impose lenient
E E
and concurrent sentences on the defendant given his plea, his limited role
F and that he has been remanded since November 2017. F
G G
Sentence
H H
8. Counsel for the defence submitted that there was no evidence of
I I
a scheme of human trafficking. I disagree. Based upon the facts admitted,
J the defendant came to Hong Kong and used his own particulars to obtain a J
boarding pass, which he knew he would not use but would be passed to
K K
others. As an adult with normal intelligence, he must have known that the
L L
use of a boarding pass is to entitle the holder of it to board the flight
M
specified therein. If his boarding pass were to be passed to someone else, M
then it must be the case that someone would use the boarding pass by
N N
falsely representing that he was the defendant. Therefore, based on the
O facts admitted, I find the only irresistible inference is that what the O
defendant did was part and parcel of a scheme of human trafficking. Of
P P
course, I accept there is no evidence of the size of the scheme.
Q Q
9. There is no sentencing guideline in respect of human trafficking.
R R
10. In HKSAR v Cheng Kwong Chung & Ors, CACC 536/2001, the
S S
Court of Appeal stated at paragraph 51:
T T
1
HKSAR v He Wen You [2009] 3 HKLRD 445; HKSAR v Li Xiao Feng, HCMA 286/2003;
HKSAR v Ye Ying, HCMA 184/2003 and HKSAR v Xue Xiaoming, HCMA 54/2004
U U
V V
- 5 -
A A
B B
C
“We take the view that offences such as these are very serious. … the C
offences deliberately seek not only to undermine Hong Kong’s laws but
D D
also the immigrations laws of other jurisdictions, and to enable persons to
E
travel on aircraft when they are not authorized to do so. It hardly needs to E
be emphasized that conduct of this kind is to be treated by our courts with a
F F
firm hand, not least when air security and international immigration
G controls carry an importance greater than ever before.” G
H H
11. In HKSAR v He Wenyou [2009] 3 HKLRD 445, the Court of
I I
Appeal said at paragraph 9:
J J
K
“We must point out that a higher starting point is applicable to this kind of K
cases, which clearly involve sophisticated planning and arrangement.
L L
Making use of Hong Kong’s position as a hub of communications,
M offenders assist illegal immigrants in entering a third country. By means of M
a fraudulent scheme, offenders help illegal immigrants enter the restricted
N N
area of the Hong Kong International Airport, where they then use false
O boarding passes to board flights bound for a third country. Upon arrival in O
that country, they will use false identity documents for gaining entry into
P P
that country. These activities will obviously tarnish Hong Kong’s
Q international reputation. Furthermore, as a result of those activities, Q
immigration authorities of foreign countries will become wary of visitors
R R
from Hong Kong even when they are holding lawful travel documents,
S which means that visitors from Hong Kong will have to suffer a certain S
degree of inconvenience when they enter those countries. Severe, deterrent
T T
sentences must therefore be imposed for those offences.”
U U
V V
- 6 -
A A
B 12. In that case, the Court of Appeal confirmed that there was B
difference in the culpability of those who plotted or carried out the scheme
C C
and that of the illegal immigrants who took part in the scheme. The Court
D of Appeal considered the former to be more culpable. The applicant in that D
case was an illegal immigrant taking part in the scheme. The Court of
E E
Appeal considered 32 months to be the appropriate starting point.
F F
13. In the present case, the defendant was not the person being
G G
trafficked. Whilst I accept the defendant was not the mastermind behind
H the scheme, he was somehow recruited to assist in the implementation of H
the scheme. Without the defendant’s cooperation, the conspiracy would
I I
collapse. He was essential to the conspiracy’s successful implementation.
J J
14. In view of the above authorities and taking into consideration the
K K
background of the defendant and the facts of the case, I consider the
L
appropriate starting point to be 3 years’ imprisonment for each count. L
M
Given the defendant’s guilty plea, the sentence is reduced to 2 years’ M
imprisonment for each count. Family hardship is generally not a
N N
mitigating factor. Apart from the defendant’s plea, I do not see other
O mitigating factor justifying further reduction of sentence. Having O
considered the totality principle and the fact that the two offences arose
P P
from the same incident, I order the sentences for the two charges to run
Q concurrently. The defendant is therefore sentenced to a total sentence of 2 Q
years’ imprisonment.
R R
S S
(Kathie Cheung)
T Deputy District Judge T
U U
V V