HKSAR v. BALJIT SINGH

DCCC 328/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 328 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant entered pleas of guilty to one charge of conspiracy to make false instruments (Charge 1) and one charge of taking employment while being a person who remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong (Charge 2).

THE FACTS

2.  On 30 November 2015, the defendant surrendered to the Immigration Department for illegal remaining in Hong Kong and was released on Immigration recognizance.  The defendant was prohibited from taking up any employment, whether paid or unpaid.

3.  On 6 December 2016, the defendant was intercepted by Immigration Assistant in a restaurant namely “Matsuzaka Japanese Restaurant” located at Flat 23-28, UG/F, South Seas Centre, 75 Mody Road, Tsim Sha Tsui, Kowloon, Hong Kong (the “Restaurant”) while he was observed to have cleaned up tables and served dishes and drinks to the decoy officers (Charge 2).  A mobile phone (the “Phone”) was seized from the defendant.

4.  Forensic examination was conducted on the Phone and images of suspected forged Hong Kong identity cards were retrieved from the Phone.  Among the images, the Hong Kong Permanent Identity Cards numbered “p802445(2)”, “P054724(0)”, “P941398(0)”, “R704258(1)”, “P542235(7)” and “B247883(6)” were confirmed to be forged accordingly to the record of the Immigration Department.  

5.  Under caution, the defendant confirmed that: -

a) The data in the Phone belonged to the defendant. It was seized on the 6 December 2016;

b) The images of Hong Kong identity cards shown to the defendant were extracted from the Phone and the said Hong Kong identity cards were forged;

c) On 1 October 2016, a person known as “GULNAZ AKHTAR” also known as RANI (“A1”) met the defendant in a park in Tsim Sha Tsui East and explained to the defendant the process of getting forged identity cards made and the defendant’s role;

d) The defendant’s role was to receive by phone from A1 the photographs and personal particulars of the claimants who were willing to make forged Hong Kong identity cards and then pass the information to “GURSHARN SINGH” also known as or PANNU (“A2”) by WhatsApp messaging application;

e) A2 would hand these details over to “DARSHAN SINGH” (“A3”) to make forged Hong Kong identity cards;

f) A3 would process the forged identity cards in Mainland China;

g) Once the forged identity cards were ready, A2 would call the defendant to collect the cards which were sealed in the cover of a notebook;

h) The defendant would then give the notebook (with the forged identity cards) to A1 and A1 would sell the forged identity cards to non-refoulement claimants for job seeking in Hong Kong for around HK$4,500 per card;

i) The defendant had arranged for forged identity cards for A1 around 4 times from October 2016 to November 2016;

j) As instructed, the defendant sent the photos and personal particulars to A3 and then collected the forged identity card from A2;

k) A2 gave the defendant a sealed notebook and the defendant knew from A1 that the forged identity cards were sealed in the notebook;

l) The defendant later handed over the notebook to A1;

m) The defendant knew that the personal particulars on the forged identity cards were wrong but the photos always belonged to the buyers of the forged identity cards;

n) In return for arranging forged identity cards, A1 allowed the defendant to continue with his job in the Restaurant to earn around HK$1,500 per month;

o) He entered Hong Kong illegally on 24 November 2015 and had been living in Hong Kong as a non-refoulement claimant;

p) He worked as a waiter at the Restaurant on 6 December 2016;

q) He knew that he was not allowed to work in Hong Kong but he had started working at the Restaurant since around July 2016.

6.  The defendant, between October 2016 and November 2016, in Hong Kong or elsewhere, conspired with A1, A2 and A3 to make false instruments, namely, false Hong Kong Identity Cards, with the intention that others would use them to induce somebody to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice.

7.  The defendant, on 6 December 2016, in Hong Kong, while being a person who, having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration under section 13 of the Immigration Ordinance, Cap 115, took employment, whether paid or unpaid, as an odd job worker at Tsim Sha Tsui.

PERSONAL BACKGROUND AND MITIGATION

8.  The defendant has a clear record.  He is 25 years old. He lived with his parents and younger brother in India. In November 2015, he came to Hong Kong through a middle man called Parminder by paying him a large sum of money. As a result, his family ran into heavy debt.  They now rely on their neighbours and temple to provide them with food. Due to the present incident, the parents are now bedridden. His mother needed surgery on her lung and gallbladder.

9.  Upon arrival in Hong Kong, Rani (A1) introduced the defendant to take up employment in the Restaurant in order to repay the debt owed to Parminder. However, the defendant was being exploited. The salary was paid by the employer to A1 and she paid the defendant $1,500 per month. His passport was kept by the people of Parminder. The defendant was told by Rani (A1) to collect the false Hong Kong ID cards for her, otherwise the defendant could not keep up his employment in the Restaurant.

10.  Miss Panesar, counsel for the defendant, submitted that under such circumstances, the defendant had been put under duress. In order to repay the borrowed sum to Parminder, the defendant had to assist A1 in the false ID operation in order to keep the employment.

11.  Miss Panesar further submitted that the defendant acted as a foot soldier for the false ID card operation. His role was on the low scale of criminality.  The defendant has expressed he is willing to assist the authority by fully disclose the roles played by other co-conspirators.

12.  Lastly, Miss Panesar urged that court to pass a concurrent sentence on both charges as the defendant committed Charge 1 so as to keep his employment in the Restaurant.  He did not receive any monetary reward for what he had done for Charge 1.  Miss Panesar submitted that both charges were interlinked.

SENTENCING CONSIDERATIONS

13.  Adjournment had been made to see whether the assistance offered by the defendant by way of a non-prejudicial statement would yield anything which might be to his advantage. I am told that the defendant has given one non-prejudicial statement which had led to the arrest of A1 and Parminder.

14.  After discussion with the parties whether to defer the sentence until the defendant has had the opportunity to live up to his promise, or to sentence now and leave the matter being addressed by the Court of Appeal once the defendant complied with his promise: R v Wong Kam Chiu [1993] 2 HKC 700 at 704. The parties are of the view that the latter course should be taken as the conclusion of the trial of other co-conspirators are far away.

15.  At this present stage, it is not known if the defendant would fulfill the offer made by him at this sentencing hearing. Therefore, no discount will be given to the defendant for a mere promise to assist.  However, he can appeal seeking a reduction of his sentence for the assistance he renders to the prosecution leading to the conviction of other culprits: HKSAR v Chan Po Yu CACC134/2016.

Charge 1: Conspiracy to make false instruments

16.  There is no sentencing guideline for Charge 1. Each case has to be decided on its own facts and circumstances. 

17.  In sentencing, I have considered the whole circumstances of the present case, including its nature and facts, personal background of the defendant and mitigation put forward on his behalf.

18.  The commission of Charge 1 has a serious detrimental effect on the community and tarnishes Hong Kong’s reputation for order and security. The making of false Hong Kong ID cards will no doubts cause damage to the integrity of the Hong Kong ID card system. The customers of these false ID cards are likely used them for the purpose of concealing their true identity so that they can work illegally in Hong Kong. It would directly impact local workers by depriving them of job opportunities and bringing down their wages, as a result of which the livelihood of Hong Kong people as well as the economic structure and social order of Hong Kong would be adversely affected. In my view, sufficiently deterrent sentences must be imposed for the offence of making of false ID cards.

19.  Apart from the above factors, for Charge 1, there is evidence of a syndicate.  I accept that the setup was not sophisticated. There is no international element in the present case. I also accept that the defendant was less culpable than other co-conspirators, A1 and A3. He played a role of being a courier in the operation. However, without the assistance of people like the defendant, those who committed the offence of making false ID cards would have difficulty in disposing them. The defendant should have stopped and realized that he was being manipulated by A1. Unfortunately, he chose not to. He carried on to be the foot soldier of A1 in the conspiracies to make false instruments. What the defendant did was seriously wrong.  I accept that it is the result of his weak character.  However, I find what the defendant had done warrants a prison sentence.

20.  In all the circumstances, I am of the view that a starting point of 3.5 years’ imprisonment (42 months) is appropriate for Charge 1 committed by the defendant. 

21.  The defendant was a torture claimant, pending the determination of his torture claim, he was permitted to remain in Hong Kong and was at liberty under a recognizance issued by the Director of Immigration. The offence committed by the defendant have a serious detrimental effect on Hong Kong’s reputation. I adopt to enhance the starting point by 3 months to 45 months’ imprisonment for Charge 1: see HKSAR v Sandagdorj Altankhuyag & anor [2014] 1 HKC 206.

22.  Miss Panesar mitigated that the defendant was acting under duress. He was threatened of not being employed if he did not assist in Charge 1. He received no monetary gain for committing this charge. 

23.  Regrettably, it was held that duress is no mitigation for the accused who committed the offence in order to keep his job: HKSAR v Cheung Chun CACC 539/1998.  However, in view of the defendant’s weak character and subjected to undue influence by Parminder, I still reduce his sentence by 3 months. His sentence is so brought down to 42 months’ imprisonment.

24.  I have considered HKSAR v Ngo Van Nam CACC 418/2014, the revised discount of sentence for pleas of guilty should apply in this case. I would adopt 25% discount on the defendant tendered up his plea on Charge 1 on the first day of trial.  Therefore, the sentence is reduced from 42 months to 31 months and 2 weeks’ imprisonment upon his plea.

Charge 2: Taking employment without authority

25.  For Charge 2, it was a timely plea. The defendant indicated his guilty plea on the plea day. I had considered all the mitigating factors and found no strong humanitarian considerations to depart from the guidelines in HKSAR v Usman Butt & Another, HCMA70/2010.  The tariff is 15 months’ imprisonment upon a plea of guilty. The defendant is so sentenced to 15 months’ imprisonment.

TOTALITY

26.  The nature of the offence in Charge 2 is completely different to that in Charge 1, the terms should be ordered to run consecutively. However, I accept that the defendant is being exploited by A1 and Parminder. The two charges are part and parcel to each other.  Therefore, I order that both the charges to be run concurrently. The total term is 31 months and 2 weeks’ imprisonment.