HKSAR v. LEE JOONHO

DCCC 75/2018

[2018] HKDC 1092

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 75 OF 2018

----------------

----------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.  The defendant pleaded guilty to one count of “making a false representation to an Immigration Assistant”, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115 and one count of “conspiracy to obtain services by deception”, contrary to section 18A(1) of the Theft Ordinance, Cap. 210 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.

Facts

2.  On 25 December 2011, the defendant was instructed by a person known as “Mr Zheng” to obtain a boarding pass to Sydney by using the particulars on his Korean passport and he would be given a return ticket to Shanghai as reward.

3.  On 28 December 2011, the defendant showed Chu Chun-wai, Acting Senior Immigration Assistant, his passport and boarding pass for flight to Sydney even though his destination was Shanghai.  After the defendant entered the restricted area, he deposited his boarding pass for Sydney in a male toilet as instructed by Mr Zheng and waited for the flight to Sydney to take off before boarding a flight to Shanghai.

4.  The defendant was arrested on 14 November 2017 when he arrived at Hong Kong. Under caution, he admitted receiving instructions from Mr Zheng to obtain a boarding pass to Sydney using his Korean passport details, that he went to the check-in counter on 28 December 2011 and obtained a boarding pass to Sydney, that he showed his passport and boarding pass for Sydney to counter officer even though his final destination was Shanghai, that he deposited his boarding pass for Sydney in a male toilet as instructed by Mr Zheng, that he did not know who had collected or used his boarding pass for Sydney and he obtained a free return ticket to Shanghai as reward.

Mitigation

5.  The defendant is aged 50 and was born in Korea.  He was educated up to Form 2 level.  He is married with 3 children.  He lived with his wife, 3 children and his parents in Korea and worked as construction worker prior to the arrest.  He has a clear record.

6.  In mitigation, it was revealed that he worked for a company in Hong Kong between 2009 and 2011.  At that time, he was asked to register himself as director of that company, which he did so.  He did not receive salary for 8 months when working for the company and he was in deep financial trouble.  At that time, he was looking for jobs and was referred to Mr Zheng.  He had never seen Mr Zheng.  He only communicated with him via telephone.  He came to Hong Kong on 25 December 2011 and he received instruction from Mr Zheng on 28 December 2011.  He was offered return tickets for getting boarding pass in this case. He did not know the plan.  After that, in 2012, he was able to formally withdraw from the company and he returned to Korea.  Since then, he worked as a construction worker.  He was arrested when he came to Hong Kong again with his family for sightseeing. 

7.  Counsel for the defence submitted that no false or forged travel document was involved.  The defendant did not know about the plan.  He only wanted to have the return ticket to Shanghai to see if there was any job opportunity in China.  He had no monetary gain.  Counsel referred to several cases[1] and submitted that these cases were for reference only as the present case did not involve human trafficking.  Counsel also submitted that there was no allegation of a bigger scheme in the Summary of Facts and the court should not speculate.  The court was urged to impose lenient and concurrent sentences on the defendant given his plea, his limited role and that he has been remanded since November 2017.   

Sentence

8.  Counsel for the defence submitted that there was no evidence of a scheme of human trafficking.  I disagree.  Based upon the facts admitted, the defendant came to Hong Kong and used his own particulars to obtain a boarding pass, which he knew he would not use but would be passed to others.  As an adult with normal intelligence, he must have known that the use of a boarding pass is to entitle the holder of it to board the flight specified therein.  If his boarding pass were to be passed to someone else, then it must be the case that someone would use the boarding pass by falsely representing that he was the defendant. Therefore, based on the facts admitted, I find the only irresistible inference is that what the defendant did was part and parcel of a scheme of human trafficking.  Of course, I accept there is no evidence of the size of the scheme.   

9.  There is no sentencing guideline in respect of human trafficking.

10.  In HKSAR v Cheng Kwong Chung & Ors, CACC 536/2001, the Court of Appeal stated at paragraph 51:

“We take the view that offences such as these are very serious. … the offences deliberately seek not only to undermine Hong Kong’s laws but also the immigrations laws of other jurisdictions, and to enable persons to travel on aircraft when they are not authorized to do so. It hardly needs to be emphasized that conduct of this kind is to be treated by our courts with a firm hand, not least when air security and international immigration controls carry an importance greater than ever before.”

11.  In HKSAR v He Wenyou [2009] 3 HKLRD 445, the Court of Appeal said at paragraph 9:

“We must point out that a higher starting point is applicable to this kind of cases, which clearly involve sophisticated planning and arrangement. Making use of Hong Kong’s position as a hub of communications, offenders assist illegal immigrants in entering a third country. By means of a fraudulent scheme, offenders help illegal immigrants enter the restricted area of the Hong Kong International Airport, where they then use false boarding passes to board flights bound for a third country. Upon arrival in that country, they will use false identity documents for gaining entry into that country. These activities will obviously tarnish Hong Kong’s international reputation. Furthermore, as a result of those activities, immigration authorities of foreign countries will become wary of visitors from Hong Kong even when they are holding lawful travel documents, which means that visitors from Hong Kong will have to suffer a certain degree of inconvenience when they enter those countries. Severe, deterrent sentences must therefore be imposed for those offences.”

12.  In that case, the Court of Appeal confirmed that there was difference in the culpability of those who plotted or carried out the scheme and that of the illegal immigrants who took part in the scheme.  The Court of Appeal considered the former to be more culpable.  The applicant in that case was an illegal immigrant taking part in the scheme.  The Court of Appeal considered 32 months to be the appropriate starting point.

13.  In the present case, the defendant was not the person being trafficked.  Whilst I accept the defendant was not the mastermind behind the scheme, he was somehow recruited to assist in the implementation of the scheme.  Without the defendant’s cooperation, the conspiracy would collapse.  He was essential to the conspiracy’s successful implementation. 

14.  In view of the above authorities and taking into consideration the background of the defendant and the facts of the case, I consider the appropriate starting point to be 3 years’ imprisonment for each count.  Given the defendant’s guilty plea, the sentence is reduced to 2 years’ imprisonment for each count.  Family hardship is generally not a mitigating factor.  Apart from the defendant’s plea, I do not see other mitigating factor justifying further reduction of sentence.  Having considered the totality principle and the fact that the two offences arose from the same incident, I order the sentences for the two charges to run concurrently.  The defendant is therefore sentenced to a total sentence of 2 years’ imprisonment.