DCCC682/2021 HKSAR v. LI XIANJI AND OTHERS - LawHero
DCCC682/2021
區域法院（刑事）Deputy District Judge M Chow12/1/2022[2022] HKDC 65
DCCC682/2021
A A
B B
DCCC 682/2021
C [2022] HKDC 65 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 682 OF 2021
F F
G ------------------------------- G
HKSAR
H H
v
I LI XIANJI (D1) I
XIA HONGLE (D2)
J J
MAI JIELAN (D3)
K ------------------------------- K
L L
Before: Deputy District Judge M Chow
M Date: 13 January 2022 M
Present: Miss Lo Cheuk Yuet Iva, Public Prosecutor, for
N N
HKSAR/Director of Public Prosecutions.
O Mr Ma Tsz On Stephen, instructed by Tang, Lai & Leung, O
assigned by the Director of Legal Aid, for the 1st defendant
P P
Ms Lau Chih Wai Lorinda, instructed by Robinsons, Lawyers,
Q assigned by the Director of Legal Aid, for the 2 nd defendant Q
Miss Chong Kwan Yu Sezen, instructed by Cheung & Yeung,
R R
Solicitors, assigned by the Director of Legal Aid, for the
S 3rd defendant S
Offence: [1] to [3] Conspiracy to obtain services by deception (串
T T
謀以欺騙手段取得服務)
U U
V V
-2-
A A
B B
C --------------------------------------- C
REASONS FOR SENTENCE
D D
---------------------------------------
E E
1. All the three defendants pleaded guilty to their respective
F F
charges, namely conspiracy to obtain services by deception, contrary to
G S 18A(1) of the Theft Ordinance, Cap 210, S 159C of the Crimes G
Ordinance, Cap 200 and S 2(3)(a) and 4(2) of the Criminal Jurisdiction
H H
Ordinance, Cap 461.
I I
Summary of facts
J J
K 2. On 21 April 2021, D1, D2 and D3 each attempted to use a K
Mexcian Permanent Resident Card bearing their respective names to obtain
L L
boarding passes at the check-in counter in the Hong Kong Airport. The
M flight (KL820) would depart Hong Kong to Amsterdam. M
N N
3. The staff at the check in counter found them suspicious and
O referred them to the Immigration Department for investigation. O
P P
4. They were soon arrested. Under caution, they all admitted
Q that:- Q
R R
a. They were PRC passport holders.
S S
T b. They came to Hong Kong from Shekou by boat. T
U U
V V
-3-
A A
B B
c. They intended to board a flight from Hong Kong to go
C to Mexico by transiting in Amsterdam. C
D D
d. They all presented their respective Mexican Permanent
E Resident Card at the check in counter. E
F F
e. D1 and D2 obtained their Mexican Permanent Resident
G Cards from their agents with a charging fee of G
RMB60,000 and 50,000 respectively. Both D1 and D2
H H
intended to use that card to work in Mexico.
I I
f. D3 obtained her Mexican Permanent Resident Card
J J
through a friend. She did not know the cost for
K obtaining the card. She intended to visit her friend in K
Mexico.
L L
M Criminal Record M
N N
5. D1 had one criminal record in 2014 for a charge of criminal
O intimidation. D2 and D3 have clear record. O
P P
Background
Q Q
6. D1 is 56, divorced. He was previously employed as a chef
R R
earning RMB6,000 per month. He lost his job in June 2019 due to closure
S of the restaurant. He then commenced to work as driver earning about S
RMB$100 per day.
T T
U U
V V
-4-
A A
B B
7. Due to the onset of the pandemic COVID-19, he could no
C longer find another job. C
D D
8. It was through an online advertisement that he submitted his
E application through WeChat. D1 then came to realize that he had to pay E
RMB$60,000 for the application fee. That amount would be deducted
F F
from his wages when he started to work in Mexico.
G G
9. D2 is now 32 years old, his wife (30) has long term illness as
H H
she suffered from Hepatitis B. They have 2 boys, aged 4 and 8. Both are
I students. I
J J
10. D2 is a farmer and earned about RMB$3,000 per month while
K his wife’s medical expenses was about RMB$3,000 per month. D2 K
borrowed money from friends and relatives to treat his wife.
L L
11. In 2021, the debt collector started to demand payment after
M M
Chinese New Year.
N N
O
12. D2 found an online post which said that salary in Mexico was O
much higher. D2 then contacted the post-maker who informed him a
P P
Mexican Permanent Resident Card would cost RMB50,000. He borrowed
Q money from others to obtain that card. Q
R R
13. D3 is 31 years old, single. Both parents are famers in China.
S Her previous job was a saleslady earning about RMB3,000 to 4,000 per S
month.
T T
U U
V V
-5-
A A
B B
14. Today, D3 submitted a mitigation letter to inform this Court
C that her mother has failing health. Her mother is particularly worried about C
her situation in Hong Kong. D3 is now very regretfully for committing the
D D
present offence. She asked for a lenient sentence so that she can be reunited
E with her family soon. E
F F
Sentence
G G
15. The maximum sentence for S 18A(1) is one of 10 years
H H
imprisonment. The 3 defendants have committed very serious offence.
I I
16. The defence have referred this court to a few cases regarding
J J
this type of offence:-
K K
(1) HKSAR v Yim Kim Ping and others CACC 67/2009
L L
(2) HKSAR v Ye Ying [2003] HKLRD 559 (a Magistracy
M appeal) M
(3) HKSAR v Ponniah Viththiyakaran DCCC 584/2018 (a
N N
District Court case)
O O
17. The following cases were often referred to in sentencing this
P P
type of offence:-
Q Q
(1) HKSAR v Lee Shin Won [2012] 1 HKLRD 283
R R
(2) HKSAR v He Wen You [ 2009 ] 3 HKLRD 445
S S
T T
U U
V V
-6-
A A
B B
18. In Lee Shin Won, D4 and D5 were recruited by D3 to scan
C their Korean passports to produce false passports for T1 and T2. When D4 C
and D5 arrived Hong Kong from Korea, D4 and D5 surrendered their
D D
onward boarding passes to D3 in the departure area of the Hong Kong
E airport. D4 and D5 falsely reported to the Immigration officers that their E
boarding passes were lost. D4 and D5 received a sentence of 4 years each
F F
after trial.
G G
19. The Court of Appeal also said that:-
H H
I “the sentencing goal for human trafficking was deterrence. Such I
offences involved sophiscated planning and arrangement to assit
illegal immigrants to enter a third country using false
J documents. These activities tarnished Hong Kong’s J
international reputation and undermined the laws of Hong Kong
K
and other jurisdictions which had mutual responsibility to punish K
and deter those being trafficked. Thus, the sentences must be
sufficiently severe so that persons who might be approached to
L assist in such schemes, such as D4-5 here, would realize the L
seriousness of the crime and the consequences to them if
detected.”
M M
N 20. In He Wen You, the Defendant also faced the same charge of N
obtaining services by deception. He checked in a flight to Bangkok, but
O O
queued up at the boarding gate for a flight to Rome, Italy, by holding a
P boarding pass for a differently named passenger. On appeal, he received a P
sentence of 32 months as the starting point.
Q Q
R 21. The Court of Appeal in He Wen You also have similar R
comments to say that:-
S S
T “Severe, deterrent sentences must therefore be imposed for T
offences associated with such schemes”
U U
V V
-7-
A A
B B
22. I noticed that in passing sentence in the case of Ponniah
C Viththiyakaran, the learned Judge also referred to the case of He Wen You. C
D D
23. As to the case of Yim Kim Ping and Others, the 3 defendants
E were charged under S 75(1) of the Crimes Ordinance, which was E
possessing of false passports. They received sentences from 2.5 years to 4
F F
years as the starting point.
G G
24. In the present case:-
H H
I (a) The 3 defendants admitted that they were arranged to I
travel to Hong Kong from Shekou by boat.
J J
(b) They were not permanent residents in Mexico.
K (c) They conspired with agent (as in the case of D1-D2) K
and friend (D3) to participate in this scheme.
L L
(d) The scheme was well-planned, boat was arranged to
M take the 3 defendants to Hong Kong, then to the Hong M
Kong International airport with flight tickets ready to
N N
check-in at the counter.
O O
25. The defence all urged this Court to consider the starting point
P P
as adopted in Ye Ying, which was decided in 2003. It was a Magistracy
Q appeal. Parties agreed that it is not binding upon this Court. On the other Q
hand, Lee Shin Won and He Wen You were decided in 2012 and 2009
R R
respectively.
S S
26. However, I do accept that I have to consider the culpability of
T T
the defendants in the present case and their role to play in this conspiracy
U U
V V
-8-
A A
B B
plot. They were not the mastermind, they were the end users. Each of
C them have their own interest to take this journey to Mexico. C
D 27. When I pass sentences on the defendants, I bear in mind of all D
the mitigating factors advanced on their behalves.
E E
28. As said in many cases, financial hardship is not a mitigating
F F
factor.
G G
H
29. With the underlying principle of a deterrent sentence in mind, H
I consider that 30 months starting point is appropriate, reduce to 20 months
I I
after one-third discount.
J J
30. Order:-
K K
L All 3 defendants are each to serve a sentence of 20 months. L
M M
N N
O O
P ( M Chow ) P
Deputy District Judge
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 682/2021
C [2022] HKDC 65 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 682 OF 2021
F F
G ------------------------------- G
HKSAR
H H
v
I LI XIANJI (D1) I
XIA HONGLE (D2)
J J
MAI JIELAN (D3)
K ------------------------------- K
L L
Before: Deputy District Judge M Chow
M Date: 13 January 2022 M
Present: Miss Lo Cheuk Yuet Iva, Public Prosecutor, for
N N
HKSAR/Director of Public Prosecutions.
O Mr Ma Tsz On Stephen, instructed by Tang, Lai & Leung, O
assigned by the Director of Legal Aid, for the 1st defendant
P P
Ms Lau Chih Wai Lorinda, instructed by Robinsons, Lawyers,
Q assigned by the Director of Legal Aid, for the 2 nd defendant Q
Miss Chong Kwan Yu Sezen, instructed by Cheung & Yeung,
R R
Solicitors, assigned by the Director of Legal Aid, for the
S 3rd defendant S
Offence: [1] to [3] Conspiracy to obtain services by deception (串
T T
謀以欺騙手段取得服務)
U U
V V
-2-
A A
B B
C --------------------------------------- C
REASONS FOR SENTENCE
D D
---------------------------------------
E E
1. All the three defendants pleaded guilty to their respective
F F
charges, namely conspiracy to obtain services by deception, contrary to
G S 18A(1) of the Theft Ordinance, Cap 210, S 159C of the Crimes G
Ordinance, Cap 200 and S 2(3)(a) and 4(2) of the Criminal Jurisdiction
H H
Ordinance, Cap 461.
I I
Summary of facts
J J
K 2. On 21 April 2021, D1, D2 and D3 each attempted to use a K
Mexcian Permanent Resident Card bearing their respective names to obtain
L L
boarding passes at the check-in counter in the Hong Kong Airport. The
M flight (KL820) would depart Hong Kong to Amsterdam. M
N N
3. The staff at the check in counter found them suspicious and
O referred them to the Immigration Department for investigation. O
P P
4. They were soon arrested. Under caution, they all admitted
Q that:- Q
R R
a. They were PRC passport holders.
S S
T b. They came to Hong Kong from Shekou by boat. T
U U
V V
-3-
A A
B B
c. They intended to board a flight from Hong Kong to go
C to Mexico by transiting in Amsterdam. C
D D
d. They all presented their respective Mexican Permanent
E Resident Card at the check in counter. E
F F
e. D1 and D2 obtained their Mexican Permanent Resident
G Cards from their agents with a charging fee of G
RMB60,000 and 50,000 respectively. Both D1 and D2
H H
intended to use that card to work in Mexico.
I I
f. D3 obtained her Mexican Permanent Resident Card
J J
through a friend. She did not know the cost for
K obtaining the card. She intended to visit her friend in K
Mexico.
L L
M Criminal Record M
N N
5. D1 had one criminal record in 2014 for a charge of criminal
O intimidation. D2 and D3 have clear record. O
P P
Background
Q Q
6. D1 is 56, divorced. He was previously employed as a chef
R R
earning RMB6,000 per month. He lost his job in June 2019 due to closure
S of the restaurant. He then commenced to work as driver earning about S
RMB$100 per day.
T T
U U
V V
-4-
A A
B B
7. Due to the onset of the pandemic COVID-19, he could no
C longer find another job. C
D D
8. It was through an online advertisement that he submitted his
E application through WeChat. D1 then came to realize that he had to pay E
RMB$60,000 for the application fee. That amount would be deducted
F F
from his wages when he started to work in Mexico.
G G
9. D2 is now 32 years old, his wife (30) has long term illness as
H H
she suffered from Hepatitis B. They have 2 boys, aged 4 and 8. Both are
I students. I
J J
10. D2 is a farmer and earned about RMB$3,000 per month while
K his wife’s medical expenses was about RMB$3,000 per month. D2 K
borrowed money from friends and relatives to treat his wife.
L L
11. In 2021, the debt collector started to demand payment after
M M
Chinese New Year.
N N
O
12. D2 found an online post which said that salary in Mexico was O
much higher. D2 then contacted the post-maker who informed him a
P P
Mexican Permanent Resident Card would cost RMB50,000. He borrowed
Q money from others to obtain that card. Q
R R
13. D3 is 31 years old, single. Both parents are famers in China.
S Her previous job was a saleslady earning about RMB3,000 to 4,000 per S
month.
T T
U U
V V
-5-
A A
B B
14. Today, D3 submitted a mitigation letter to inform this Court
C that her mother has failing health. Her mother is particularly worried about C
her situation in Hong Kong. D3 is now very regretfully for committing the
D D
present offence. She asked for a lenient sentence so that she can be reunited
E with her family soon. E
F F
Sentence
G G
15. The maximum sentence for S 18A(1) is one of 10 years
H H
imprisonment. The 3 defendants have committed very serious offence.
I I
16. The defence have referred this court to a few cases regarding
J J
this type of offence:-
K K
(1) HKSAR v Yim Kim Ping and others CACC 67/2009
L L
(2) HKSAR v Ye Ying [2003] HKLRD 559 (a Magistracy
M appeal) M
(3) HKSAR v Ponniah Viththiyakaran DCCC 584/2018 (a
N N
District Court case)
O O
17. The following cases were often referred to in sentencing this
P P
type of offence:-
Q Q
(1) HKSAR v Lee Shin Won [2012] 1 HKLRD 283
R R
(2) HKSAR v He Wen You [ 2009 ] 3 HKLRD 445
S S
T T
U U
V V
-6-
A A
B B
18. In Lee Shin Won, D4 and D5 were recruited by D3 to scan
C their Korean passports to produce false passports for T1 and T2. When D4 C
and D5 arrived Hong Kong from Korea, D4 and D5 surrendered their
D D
onward boarding passes to D3 in the departure area of the Hong Kong
E airport. D4 and D5 falsely reported to the Immigration officers that their E
boarding passes were lost. D4 and D5 received a sentence of 4 years each
F F
after trial.
G G
19. The Court of Appeal also said that:-
H H
I “the sentencing goal for human trafficking was deterrence. Such I
offences involved sophiscated planning and arrangement to assit
illegal immigrants to enter a third country using false
J documents. These activities tarnished Hong Kong’s J
international reputation and undermined the laws of Hong Kong
K
and other jurisdictions which had mutual responsibility to punish K
and deter those being trafficked. Thus, the sentences must be
sufficiently severe so that persons who might be approached to
L assist in such schemes, such as D4-5 here, would realize the L
seriousness of the crime and the consequences to them if
detected.”
M M
N 20. In He Wen You, the Defendant also faced the same charge of N
obtaining services by deception. He checked in a flight to Bangkok, but
O O
queued up at the boarding gate for a flight to Rome, Italy, by holding a
P boarding pass for a differently named passenger. On appeal, he received a P
sentence of 32 months as the starting point.
Q Q
R 21. The Court of Appeal in He Wen You also have similar R
comments to say that:-
S S
T “Severe, deterrent sentences must therefore be imposed for T
offences associated with such schemes”
U U
V V
-7-
A A
B B
22. I noticed that in passing sentence in the case of Ponniah
C Viththiyakaran, the learned Judge also referred to the case of He Wen You. C
D D
23. As to the case of Yim Kim Ping and Others, the 3 defendants
E were charged under S 75(1) of the Crimes Ordinance, which was E
possessing of false passports. They received sentences from 2.5 years to 4
F F
years as the starting point.
G G
24. In the present case:-
H H
I (a) The 3 defendants admitted that they were arranged to I
travel to Hong Kong from Shekou by boat.
J J
(b) They were not permanent residents in Mexico.
K (c) They conspired with agent (as in the case of D1-D2) K
and friend (D3) to participate in this scheme.
L L
(d) The scheme was well-planned, boat was arranged to
M take the 3 defendants to Hong Kong, then to the Hong M
Kong International airport with flight tickets ready to
N N
check-in at the counter.
O O
25. The defence all urged this Court to consider the starting point
P P
as adopted in Ye Ying, which was decided in 2003. It was a Magistracy
Q appeal. Parties agreed that it is not binding upon this Court. On the other Q
hand, Lee Shin Won and He Wen You were decided in 2012 and 2009
R R
respectively.
S S
26. However, I do accept that I have to consider the culpability of
T T
the defendants in the present case and their role to play in this conspiracy
U U
V V
-8-
A A
B B
plot. They were not the mastermind, they were the end users. Each of
C them have their own interest to take this journey to Mexico. C
D 27. When I pass sentences on the defendants, I bear in mind of all D
the mitigating factors advanced on their behalves.
E E
28. As said in many cases, financial hardship is not a mitigating
F F
factor.
G G
H
29. With the underlying principle of a deterrent sentence in mind, H
I consider that 30 months starting point is appropriate, reduce to 20 months
I I
after one-third discount.
J J
30. Order:-
K K
L All 3 defendants are each to serve a sentence of 20 months. L
M M
N N
O O
P ( M Chow ) P
Deputy District Judge
Q Q
R R
S S
T T
U U
V V