HKSAR v. ZHANG JINLAN AND OTHERS

DCCC732/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 732 OF 2010

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

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

Reasons for Sentence

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

1.  The defendants faced charges relating to a scheme devised to enable persons from the Mainland to be illegally taken into Australia.

2.  The 1st and 2nd defendants were the persons whom it was intended to illegally traffic into Australia.  They were charged with two pairs of offences.  Those offences were offences of making a false representation to an Immigration Assistant and being in possession of a forged travel document.

3.  All five defendants were charged with a conspiracy to obtain services by deception, namely the Cathay Pacific airline flight from Hong Kong to Sydney.

4.  The first two defendants indicated that they intended to plead not guilty to the 5th charge, and guilty to the two charges which they each faced.  This was accepted by the prosecution.

5.  I order that the conspiracy charge against each of them lay on the file not to be proceeded with without the consent of this court or the Court of Appeal.

6.  The 3rd defendant pleaded guilty to the 5th charge of conspiracy to obtain services by deception.

7.  The 4th and 5th defendants pleaded not guilty to Charge 5 and I convicted them after trial.

8.  These charges concerned a scheme to facilitate the illegal passage into Sydney of the 1st and 2nd defendants, both of whom are Mainlanders.

9.  D3, D4 and D5 travelled to Hong Kong on 23 April from Incheon International Airport in Korea using Cathay Pacific airline tickets for flights to Sydney via Hong Kong.

10.  Whilst in transit in Hong Kong, the boarding passes for the Sydney flight were taken from D4 and D5, and later given to D1 and D2.  They had gained access to the departure lounge at the airport using tickets indicating that their destination was Guangzhou.  They received the boarding passes belonging to D4 and D5, and they were already in possession of false passports in the names of D4 and D5, but which bore their own photographs.

11.  D1, in possession of D4’s boarding pass and the forged passport in the name of D4, was stopped by an alert Cathay Pacific attendant when she attempted to board the Sydney flight, CX111.  The flight attendant suspected that the passport was forged.

12.  D2 was in possession of D5’s boarding pass and a forged passport in the name of D5.  He had managed to board the Sydney flight.  Again, due to the diligence of the same Cathay Pacific staff, who realised that D1 and D2 were travelling together, she boarded the flight and the 2nd defendant was taken from that flight.

13.  When the 2nd defendant was taken from that flight, he indicated to the airline staff that their genuine PRC passports had been discarded in a refuse bin near the boarding gate and those passports were recovered from there.

14.  The airline and Immigration authorities became aware that D3 was travelling with them.  He, in fact, had proceeded on to Sydney.  He was detained at Sydney Airport and then sent back to Hong Kong and arrested.

15.  D4 and D5 were arrested on 25 April when they returned to Hong Kong International Airport, intending to travel back to Korea.

16.  All the defendants were interviewed and gave varying accounts as to how they became involved in these offences.

17.  D1 told the immigration officers that in early April 2010, she came to know a clansman surnamed Li, who offered to arrange for her to work in Australia, and the cost was to be RMB110,000.  No money was to be paid at the time, but the money was to be paid once she had found employment in Australia.

18.  D1 accepted the offer and gave Li her PRC passport and two photographs of herself in order to Li could make the necessary arrangements.

19.  On 18 April, she was told that the trip had been arranged.  She was told that a Malaysian visa had been affixed to her passport and she was told that when she entered Hong Kong, she was to tell the Immigration authorities that it was her intention to travel to Malaysia for leisure.  Li also asked D1 to travel to Shenzhen on 22 April.

20.  When she arrived in Shenzhen, Li arranged for her to stay in a hotel overnight and asked her to go to Hong Kong on 23 April. She was also shown a forged Korean passport on the same day. She was told that she would have to use that passport to seek entry into Australia. She admitted that the photograph on the passport was hers and said she could not read the particulars.

21.  Upon arrival at Hong Kong International Airport, Li produced an e-ticket to Guangzhou and asked the 1st defendant to check in for the Guangzhou flight, which she did, and she used her PRC passport for departure clearance. She falsely represented to the Immigration Officer that her destination was Guangzhou.

22.  Li met up with her in the departure lounge and took her to a Korean who passed her the Korean passport, which she had earlier seen in Shenzhen, as well as a boarding pass for Australia, which had been issued to D4.  She was instructed to board the flight concerned at Gate 3.  She was told to conceal her own PRC passport, the e-ticket and boarding pass for Guangzhou.  She said that she then put those into her bag.

23.  Whilst she was lining up for boarding, the airline staff inspecting her boarding pass did not allow her to board the flight and she was referred to the Immigration Department.

24.  When D2 was interviewed, he told the Immigration authorities that about a month prior to the day of his arrest, he learnt from the Internet and newspapers that a Chinese Korean, surnamed Li, could help people to go to Australia at lower costs.  He passed his PRC passport and four photographs to Li, who promised to get him an Australia visa. 

25.  In mid-April, Li called and told him everything was ready.  The 2nd defendant asked for his passport back and Li said he was in Beijing.  The 2nd defendant travelled to Beijing as he was in a hurry to get his passport back.

26.  Upon arriving in Beijing, he was told that Li had already gone to Shenzhen, and he travelled to Shenzhen the following day.

27.  He met Li in the Shenzhen Airport, whereupon Li returned the passport to him.  Li later picked up a woman, who turned out to be D1, at Shenzhen Airport and brought D1 and D2 to Hong Kong via Lowu.

28.  The 2nd defendant said he noticed that his PRC passport had a Malaysian visa.  According to him, he asked Li why a Malaysian visa, as opposed to Australian visa, had been affixed, and was told by Li that he would realise the arrangements when they got to Hong Kong.

29.  At arrival clearance in Hong Kong, Li lined up in front of him, and the 2nd defendant saw Li represent to the Immigration official that Li was departing for Malaysia.  The 2nd defendant then went forward, asked if he was in Li’s company, and he answered that he was.

30.  After arriving in Hong Kong, the 1st and 2nd defendants and Li stayed overnight in a hotel.

31.  On 23 April, Li showed the 2nd defendant the Korean passport which had been issued in the name of D5.  He noticed it carried his photograph but not his personal particulars.

32.  At the hotel, Li gave D2 and e-ticket for Guangzhou, and he was to use this for checking in at the Guangzhou flight and to use his PRC passport.   He knew he would be given the Sydney boarding pass when he got to the boarding gate.

33.  D2 later went to the boarding gate for Sydney.  He met an unknown Korean male who handed over the Sydney boarding pass and he used this pass and the Korean passport to board the flight.  He saw the Korean man board the same flight.

34.  He said that he actually got on the flight but was offloaded about five minutes later.

35.  The 3rd defendant was interviewed.

36.  He told the Immigration authorities he was Korean.  He came to Hong Kong by virtue of an agreement with a Mr Choi, whom he came know through the Internet. 

37.  According to his record of interview, he said that Mr Choi offered him free travel (air tickets and hotel accommodation) to Sydney. In return, he was required to provide three passport copies, accompany two of the passport holders to Hong Kong, and transfer Sydney boarding passes to unknown persons. He sent Choi the passport copies in order to obtain the reward of free travel.

38.  The two passport holders who travelled with D3 from Incheon, Korea to Hong Kong were D4 and D5, whom he described as being his friends.  He said he followed Choi’s plan, checked in for the flight to Sydney.

39.  Upon arrival at Hong Kong, he, together with D4 and D5, entered Hong Kong.  He took their boarding passes.  A stranger approached and he handed them over to the stranger, and those were handed over to a man and woman he did not know.  Thereafter, the stranger disappeared without saying a word. 

40.  He said he boarded the flight.  He did not know what happened to the man and woman, and he said that he was stopped at Sydney Airport and sent back.

41.  A computer belonging to the defendant was found and on the hard disk of that computer, the police retrieved passport images of D3, D4 and D5, as well as a record of D3’s payment for D4 and D5’s accommodation in Hong Kong.

42.  I am told that all of the defendants have clear records, both in Hong Kong and in their countries of origin. 

43.  I am told that the 1st defendant is 41 years of age.  She was born in the northeast of China and worked as a farmer.  She has had junior secondary level education.

44.  Although she is married, she has lost contact with her husband, and has a daughter, 21, who underwent major surgery recently at a cost of RMB50,000, which she had to borrow from loansharks.  She only earns RMB500 per month.  Her daughter is unemployed.  She has a mother aged 67 in poor health, who suffers from lung and heart diseases.  She gives RMB100 a month to support her mother, and she is the sole breadwinner of the family.

45.  I am told that she was tempted to work in Australia in order to earn money to repay the loansharks.  She knew nothing about the details of the arrangements which were being made in order for her to gain access to Australia.  In order to make those arrangements, she had to agree to pay RMB110,000, which was to be repaid once she gained access to Australia and obtained employment.

46.  It was urged upon me that the offence was motivated entirely because of her economic situation.

47.  She has a clear record.

48.  She admitted the offence, and made full and frank admission when she was stopped by the Immigration authorities.

49.  I am told that the 2nd defendant is 23.  He was born in China.  He is unemployed.  At the time of this offence, he was in his fourth year of university education, studying Japanese.  The cost for the arrangements for him to travel to Australia was RMB110,000 which was to be paid later.

50.  I am told by counsel representing him that initially he thought that there was nothing wrong with the arrangements which were being made, and that his suspicions were only aroused when he arrived in Shenzhen and saw that a Malaysian visa had been attached to his passport, and it is clear that that having occurred, he carried on with the arrangements to come to Hong Kong and was later in possession of the forged passport and boarding pass belonging to D5.

51.  A number of letters had been submitted to the court asking the court for leniency.

52.  The 3rd defendant is 36 years of age.  He is university educated.  He is an architect.  Prior to his arrest, he was the chief officer of marketing companies in Korea.  He has a father, 68, who is retired, and a mother, 63, who is also retired, and a younger sister of 31.  In Korea he was earning some HK$40,000 a month and was the major breadwinner for the family.

53.  He is single and there is evidence been produced that he has no record in Korea.

54.  He pleaded guilty to the offences.  He was co-operative and remorseful.

55.  It was urged upon me that this offence was committed out of stupidity and a desire to travel for free to Australia in order to do research.

56.  I indicated to his counsel that I did not accept that mitigation, since the evidence has shown quite clearly that he was only intending to be in Sydney for a weekend.

57.  I am told that on a previous occasion, his father, in fact, had come to court to support his son. 

58.  A number of letters have been submitted to the court asking for leniency.  Letters of support have been supplied from his colleagues; a letter from a monk whom he followed in Korea.

59.  There is evidence of awards from a government department regarding community activities carried out in Korea.

60.  As regards D4 and D5, they pleaded not guilty and much of their backgrounds was told to the court during the course of the trial.

61.  D4 is 39 years of age, born in Korea and educated till the age of 19.  She was working as a caddy on a golf course in Korea.  She is a single lady.

62.  D5 is now 33.  He is single.  He lives with his parents who are aged 70, the father; his mother is 67, and both retired, and he supports them.  For the last three years he has worked as a vocal trainer earning some $10,000 per month.

63.  At the outset of these proceedings, I was handed a report from the West Kowloon Psychiatric Centre with regard to the defendant’s condition.  He suffers from Gilles de la Tourette’s Syndrome, and this manifests itself with a show of marked vocal tics like hissing, grunting or coughing. 

64.  Whilst he has been in custody, he has been mocked by other inmates for his abnormal behaviour.  When he was examined by the psychiatrist, he was found to be restless and fidget, and bouts of suddenly jumping up from his seat, and all those symptoms have manifested themselves during the course of this trial.

65.  I have been referred to two cases in particular.

66.  One of the cases is HKSAR v He Wenyou, CACC235/2008.  This case involved offences very similar to the cases which we are dealing with today.

67.  The Court of Appeal in that case said that this kind of case clearly involves sophisticated planning and arrangement, making use of Hong Kong’s position as a hub of communications.

68.  Offenders assist illegal immigrants in entering a third country.  By means of a fraudulent scheme, offenders help illegal immigrants to 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 to that country. 

69.  These activities will obviously tarnish Hong Kong’s international reputation. 

70.  Furthermore, as a result of those activities, Immigration authorities of foreign countries will become wary of visitors from Hong Kong, even when they were holding lawful travel documents, which means that visitors from Hong Kong will have to suffer a certain amount of inconvenience when they enter those countries. 

71.  Severe deterrent sentences must, therefore, be imposed for these offences.

72.  Similar sentiments were echoed in an earlier decision of the Court of Appeal in HKSAR v Cheng Kwong Chung and Others, CACC536/2001. 

73.  The court, when speaking of a similar scenario, said these offences were extremely well-planned, a substantial amount of money is paid, and refers to the high financial rewards to be expected from this form of human trafficking.  The court said that they take the view that such offences are very serious.  They involve the exploitation of persons on the Mainland for substantial sums.

74.  I note also that the principle of comity of nations requires that the courts show disapprobation for such offences.

75.  Hong Kong is a major international airport.  It is a key Asian airport for global airline operations, and Hong Kong must deal with such offences and be seen to deal with such offences in way which deters their commission.

76.  The obvious intention is that the illegal immigrants will work in the country of destination to repay the high cost of arranging for the immigration to that country.  These countries have no idea as to the identity or character of the persons entering their countries.  It follows from the scheme that such persons must live and work in those countries illegally.

77.  I have considered everything that has been said in mitigation and I have considered all the facts that have been placed before me, including the various letters that have been submitted to the court. 

78.  As regards the 1st defendant, on Charge 1 and Charge 3, I take a starting point for those offences of 3 years’ imprisonment.

79.  She will be given credit for her guilty pleas and those sentences will be reduced to 2 years’ imprisonment, and I order that such sentences will run concurrently.

80.  I adopt the same starting point for the 2nd defendant and I allow the reduction for his guilty plea. 

81.  However, in addition, I accept what has been said in mitigation, that the defendant initially was not aware that he was being involved in an illegal scheme, and that only became clear when he got to Shenzhen and saw the Malaysian visa attached to his passport.  However, thereafter, he agreed to continue with the scheme. 

82.  I have decided to reduce his sentence by one of 3 months, and so the sentence for each of his offences will be 1 year and 9 months; both sentences to run concurrently.

83.  The 3rd defendant is the most culpable of the persons appearing before this court.  He may not be the mastermind of this scheme, but he is not far behind the mastermind.  It was he that came down from Korea with D4 and D5.  It was he that arranged for their Sydney boarding passes to be taken from them and supplied to D1 and D2, and it was he that was going down to Sydney together with D1 and D2.

84.  I take a starting point in his case of 4½ years’ imprisonment.

85.  The only mitigation is his guilty plea.

86.  He will be given full credit for that, so the sentence imposed upon him will be a sentence of 3 years’ imprisonment.

87.  I convicted D4 and D5 after trial.  I was satisfied that they came to Hong Kong as part of this conspiracy and they became aware that boarding passes were to be supplied to third parties to enable them to travel illegally to Australia. 

88.  In my view, their culpability is not as high as that of D3, and I, therefore, take a starting point of 4 years’ imprisonment in respect of their offences.

89.  As far as the 4th defendant is concerned, none of the matters that have been urged upon me in mitigation would allow me to reduce that sentence.

90.  She was convicted after trial, she will go to prison for 4 years.

91.  As regards the 5th defendant, the only mitigating feature, as far as he is concerned, is the report which I have received from the West Kowloon Psychiatric Centre, and which I accept.  The psychiatrist opined that he will have a more difficult time in custody than other defendants.  To some extent, that is perhaps something he should have taken into account when he was originally persuaded to go along with this conspiracy.

92.  However, in his case, I have decided to reduce the sentence by 4 months, to a sentence of 3 years and 8 months.