HKSAR v. KUO CHING SAN

DCCC 199/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NO. 199 OF 2015

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REASONS FOR SENTENCE

The defendant faces 4 charges of "Conspiracy to defraud" (Charges 1 to 4). He pleaded guilty to Charges 1 to 3. Upon application by the prosecution, I ordered Charge 4 be left in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

Charge 1

2. On a day unknown in mid-2012, in response to a newspaper advertisement, Madam TANG (PW1) phoned an unknown woman.  PW1 met the woman in Mongkok.  She offered PW1 a reward of $10,000 for entering into a bogus marriage with a mainlander.  She said PW1 would be further rewarded after the mainlander has obtained his Hong Kong Identity Card.  PW1 accepted the offer.

3. About 11 June 2012, the woman arranged PW1 to apply for some documents including a Certificate of Absence of Marriage Record.  Two days later, she arranged the defendant to accompany PW1 to Fujian to marry a mainlander named LI.  The defendant bought a bus ticket and booked a hotel room for PW1.  He told PW1 that by virtue of the bogus marriage, LI could apply for the "Tanqin" endorsement, One-way Permit and gain settlement in Hong Kong.

4. On the 2^nd day in Fujian, the defendant took PW1 to the Marriage Registration Office, where she met LI for the first time.  The defendant coached PW1 to take a photo with LI pretending to be a genuine couple.  The defendant also handed a piece of paper to PW1 and asked her to recite the personal information of LI in case enquired by mainland officials.  PW1 and LI completed the marriage registration procedure.

5. Afterwards, the defendant coached PW1 that when being asked, she should say that she was LI's wife and that the purpose of LI's trip to Hong Kong was to visit her.  The defendant later gave PW1 RMB10,000.  PW1 has not seen LI or the defendant again.

6. Immigration record revealed that LI last entered Hong Kong on 8 December 2012 on the strength of "Tanqin" exit endorsement.

Charge 2

7. About May 2013, in response to a newspaper advertisement, Mr. SIN (PW2) phoned a woman who identified herself as "Wah Che".  PW2 later met Wah Che in Mongkok. Wah Che offered him a monetary reward for entering into a bogus marriage with a mainland woman.  Wah Che told PW2 that the reward would be paid by 3 instalments.  He would first receive $9,000 after he got married with the mainland woman.  He would receive the 2^nd and 3^rd instalments respectively after he went to the mainland for the subsequent applications and when the mainland woman settled in Hong Kong.  PW2 accepted the offer.  He also gave copies of his Hong Kong Identity Card and Home Visit Permit to Wah Che.

8. On 20 May 2013, PW2 went with Wah Che to apply for a Certificate for Absence of Marriage Record.  They then went to a law firm in Mongkok to sign some marriage documents.

9. On 10 June 2013, Wah Che arranged for PW2 to meet a female named YAO.  It was the first and only time PW2 met YAO.  They went to the law firm and the defendant was already there.

10. At the law firm, Wah Che told PW2 in the presence of the defendant that YAO would get the "Tanqin" endorsement and One-way Permit by virtue of their marriage. The defendant and Wah Che coached PW2 to pose with YAO as a genuine couple and to claim being in true love with YAO if enquired by someone.  The defendant reminded PW2 to remember everything they have taught him.  PW2 saw the defendant counting money in the law firm; the defendant also assisted Wah Che preparing the marriage documents.

11. PW2 and YAO completed the marriage registration procedure in the presence of a civil celebrant of marriage on 10 June 2013.  Wah Che retained all the marriage documents.  The defendant took out $9,000 and gave the cash to PW2 as his reward.  Wah Che and the defendant told PW2 that he would receive further rewards if he went to the mainland to assist YAO's application for settlement in Hong Kong.  They would contact PW2 later for the trip to the mainland.  PW2 had lost contact with YAO and the defendant since.

12. Immigration record revealed that YAO entered Hong Kong on 17 October 2013 on the strength of "Tanqin" exit endorsement.

Charge 3

13. On a day unknown in September 2013, someone named "Ah Ming" offered Madam WONG (PW3) a monetary reward for entering into a bogus marriage with a mainlander.  PW3 accepted the offer.

14. Two days later, PW3 and Ah Ming met in Mongkok.  Ah Ming told her that she could earn $20,000 after the bogus marriage and when the mainlander has obtained the "Tanqin" endorsement and gained settlement in Hong Kong.  PW3 gave copies of her Hong Kong Identity Card and Home Visit Permit to Ah Ming.

15. About 3 October 2013, PW3 went to apply for a Certificate of Absence of Marriage Record.  She also went to a law firm to sign some documents for the bogus marriage.

16. On 23 October 2013, PW3 went to a law firm.  Ah Ming, the defendant and a mainlander named WANG were there. The defendant and Ah Ming told PW3 that the bogus marriage was to assist WANG to apply for the "Tanqin" endorsement and to gain settlement in Hong Kong.  PW3 and WANG then completed the marriage registration procedure in the presence of a civil celebrant of marriage at the law firm.

17. Afterwards, the defendant gave $10,000 to PW3 as her reward.  The defendant also asked PW3 to go to the mainland a few days later to assist WANG applying for his One-way Permit so that she could earn the remaining $10,000.  PW3 was given the personal information of WANG in case being asked by the immigration authority.  PW3 had not seen WANG or the defendant since.

18. Immigration record revealed that WANG entered Hong Kong on 11 February 2014 on the strength of "Tanqin" exit endorsement.

Arrest and ID Parades

19. On 7 November 2013, the defendant was intercepted at the Lo Wu Control Point.  Upon search, he was found in possession of a notebook containing the personal particulars of couples of suspected bogus marriages including PW1, LI, PW2 and PW4.  The defendant also possessed of copies of the Home Visit Permits and Hong Kong Identity Cards of other persons including a copy of PW3's Hong Kong Identity Card.

20. Under caution, the defendant remained silent.

21. In the subsequent ID Parades, PW1 to PW3 identified the defendant as the person who arranged for their respective bogus marriages.

Mitigation & Sentence

22. The defendant is 44 and has a clear record.  Defence counsel Ms. LI informed me that he is married and has a son (aged 8).  The defendant is a red wine salesman earning $8,000 to $20,000 per month.  His wife used to be a homemaker.  Owing to the defendant's situation, she recently found a job in a cake shop earning $9,200 per month. The defendant also resides with his parents (both of them have health problems).

23. In mitigation, Ms. LI submitted that in early 2012, the defendant bumped into Wah Che.  He revealed to her his financial pressure.  Hence, Wah Che invited the defendant to help her with the bogus marriage transactions.  The reward was $2,000 per arrangement.  Ms. LI stressed that the defendant was not the mastermind.  He underestimated the seriousness of the offences.  He is now remorseful.

24. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basic needs.

25. There are ample authorities on the sentencing of bogus marriage cases[1] (in relation to "conspiracy to defraud" and/or "false representation" charges).  The proper starting point is 18 months' imprisonment after trial.

26. In the present case, I accept that the defendant might not have been the mastermind; however, it is plain that he played a pivotal role in arranging the bogus marriages.  His culpability is no less than those bogus brides and grooms.

27. Hence, I adopt a starting point of 18 months' imprisonment each for Charges 1 to 3. With the guilty plea, the sentence is reduced to 12 months each.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 12 months' imprisonment each for Charges 1 to 3.

28. The present case involves a total of 3 bogus marriages which took place within a period of 16 months.  Bearing in mind the totality principle, I order:  (i) 3 months in Charge 2 to run consecutive to Charge 1; and (ii) 3 months in Charge 3 to run consecutive to Charges 1 and 2.  Thus, arriving at a total prison term of 18 months.