HKSAR v. LI XIANJI AND OTHERS

DCCC 682/2021

[2022] HKDC 65

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 682 OF 2021

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REASONS FOR SENTENCE

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1.  All the three defendants pleaded guilty to their respective charges, namely conspiracy to obtain services by deception, contrary to S 18A(1)  of the Theft Ordinance, Cap 210, S 159C of the Crimes Ordinance, Cap 200 and S 2(3)(a)  and 4(2)  of the Criminal Jurisdiction Ordinance, Cap 461.

Summary of facts

2.  On 21 April 2021, D1, D2 and D3 each attempted to use a Mexcian Permanent Resident Card bearing their respective names to obtain boarding passes at the check-in counter in the Hong Kong Airport.  The flight (KL820)  would depart Hong Kong to Amsterdam.

3.  The staff at the check in counter found them suspicious and referred them to the Immigration Department for investigation.

4.  They were soon arrested.  Under caution, they all admitted that:-

a. They were PRC passport holders.

b. They came to Hong Kong from Shekou by boat.

c. They intended to board a flight from Hong Kong to go to Mexico by transiting in Amsterdam.

d. They all presented their respective Mexican Permanent Resident Card at the check in counter.

e. D1 and D2 obtained their Mexican Permanent Resident Cards from their agents with a charging fee of RMB60,000 and 50,000 respectively. Both D1 and D2 intended to use that card to work in Mexico.

f. D3 obtained her Mexican Permanent Resident Card through a friend. She did not know the cost for obtaining the card. She intended to visit her friend in Mexico.

Criminal Record

5.  D1 had one criminal record in 2014 for a charge of criminal intimidation.  D2 and D3 have clear record.

Background

6.  D1 is 56, divorced.  He was previously employed as a chef earning RMB6,000 per month.  He lost his job in June 2019 due to closure of the restaurant.  He then commenced to work as driver earning about RMB$100 per day.

7.  Due to the onset of the pandemic COVID-19, he could no longer find another job.

8.  It was through an online advertisement that he submitted his application through WeChat.  D1 then came to realize that he had to pay RMB$60,000 for the application fee.  That amount would be deducted from his wages when he started to work in Mexico.

9.  D2 is now 32 years old, his wife (30)  has long term illness as she suffered from Hepatitis B.  They have 2 boys, aged 4 and 8.  Both are students.

10.  D2 is a farmer and earned about RMB$3,000 per month while his wife’s medical expenses was about RMB$3,000 per month.  D2 borrowed money from friends and relatives to treat his wife.  

11.  In 2021, the debt collector started to demand payment after Chinese New Year.

12.  D2 found an online post which said that salary in Mexico was much higher. D2 then contacted the post-maker who informed him a Mexican Permanent Resident Card would cost RMB50,000.  He borrowed money from others to obtain that card.

13.  D3 is 31 years old, single.  Both parents are famers in China.  Her previous job was a saleslady earning about RMB3,000 to 4,000 per month.

14.  Today, D3 submitted a mitigation letter to inform this Court that her mother has failing health.  Her mother is particularly worried about her situation in Hong Kong.  D3 is now very regretfully for committing the present offence.  She asked for a lenient sentence so that she can be reunited with her family soon.

Sentence

15.  The maximum sentence for S 18A(1)  is one of 10 years imprisonment. The 3 defendants have committed very serious offence.

16.  The defence have referred this court to a few cases regarding this type of offence:-

(1)  HKSAR v Yim Kim Ping and others CACC 67/2009

(2)  HKSAR v Ye Ying [2003] HKLRD 559 (a Magistracy appeal)

(3)  HKSAR v Ponniah Viththiyakaran DCCC 584/2018 (a District Court case)

17.  The following cases were often referred to in sentencing this type of offence:-

(1)  HKSAR v Lee Shin Won [2012] 1 HKLRD 283

(2)  HKSAR v He Wen You [ 2009 ] 3 HKLRD 445

18.  In Lee Shin Won, D4 and D5 were recruited by D3 to scan their Korean passports to produce false passports for T1 and T2.  When D4 and D5 arrived Hong Kong from Korea, D4 and D5 surrendered their onward boarding passes to D3 in the departure area of the Hong Kong airport.  D4 and D5 falsely reported to the Immigration officers that their boarding passes were lost.  D4 and D5 received a sentence of 4 years each after trial.

19.  The Court of Appeal also said that:-

“the sentencing goal for human trafficking was deterrence. Such offences involved sophiscated planning and arrangement to assit illegal immigrants to enter a third country using false documents. These activities tarnished Hong Kong’s international reputation and undermined the laws of Hong Kong and other jurisdictions which had mutual responsibility to punish and deter those being trafficked. Thus, the sentences must be sufficiently severe so that persons who might be approached to assist in such schemes, such as D4-5 here, would realize the seriousness of the crime and the consequences to them if detected.”

20.  In He Wen You, the Defendant also faced the same charge of obtaining services by deception.  He checked in a flight to Bangkok, but queued up at the boarding gate for a flight to Rome, Italy, by holding a boarding pass for a differently named passenger.  On appeal, he received a sentence of 32 months as the starting point.

21.  The Court of Appeal in He Wen You also have similar comments to say that:-

“Severe, deterrent sentences must therefore be imposed for offences associated with such schemes”

22.  I noticed that in passing sentence in the case of Ponniah Viththiyakaran, the learned Judge also referred to the case of He Wen You.

23.  As to the case of Yim Kim Ping and Others, the 3 defendants were charged under S 75(1)  of the Crimes Ordinance, which was possessing of false passports.  They received sentences from 2.5 years to 4 years as the starting point.

24.  In the present case:-

(a)  The 3 defendants admitted that they were arranged to travel to Hong Kong from Shekou by boat.

(b)  They were not permanent residents in Mexico.

(c)  They conspired with agent (as in the case of D1-D2)  and friend (D3)  to participate in this scheme.

(d)  The scheme was well-planned, boat was arranged to take the 3 defendants to Hong Kong, then to the Hong Kong International airport with flight tickets ready to check-in at the counter.

25.  The defence all urged this Court to consider the starting point as adopted in Ye Ying, which was decided in 2003.  It was a Magistracy appeal.  Parties agreed that it is not binding upon this Court.  On the other hand, Lee Shin Won and He Wen You were decided in 2012 and 2009 respectively.

26.  However, I do accept that I have to consider the culpability of the defendants in the present case and their role to play in this conspiracy plot. They were not the mastermind, they were the end users.  Each of them have their own interest to take this journey to Mexico.

27.  When I pass sentences on the defendants, I bear in mind of all the mitigating factors advanced on their behalves.

28.  As said in many cases, financial hardship is not a mitigating factor.

29.  With the underlying principle of a deterrent sentence in mind, I consider that 30 months starting point is appropriate, reduce to 20 months after one-third discount.

30.  Order:-

All 3 defendants are each to serve a sentence of 20 months.