HKSAR v. Lai Kon Fai

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1029 OF 1998

______________

______________

_______________

J U D G M E N T

_______________

1. The Appellant, Lai Kon Fai was charged with and pleaded guilty to two charges of conspiracy to default. In the first charge, he was charged that between November 1996 and December 1996 in Hong Kong, he conspired together with a person known as "Ah Kuen" and another person unknown to default the officers of Immigration Department by dishonestly arranging a bogus marriage with the said unknown person in order to enable the said unknown person to obtain a right of abode in Hong Kong.

2. Save and except there is a difference in the dates, the particulars of the second charge are identical to those of the first charge. The gravamen of these two offences involved the Defendant's application for a certificate from the Immigration Department confirming his status as a single unmarried person. The facts, as they were admitted by the Appellant in the Magistracy, disclosed the following things:

(a) There was a conspiracy between the Appellant and a person called "Ah Kuen" that the certificates will be used to go through a form of marriage with women in China, and

(b) The women would then apply for residency in Hong Kong on the basis of the marriage.

3. It follows therefore at the heart of the conspiracy was a plan to bring in unlawful immigrants, and clothe them with the appearance of legitimacy. The Appellant had given some explanations in his cautioned statements which were adopted by the prosecution as part of the facts. As I said, these facts were admitted by the Defendant in the Magistracy. It was said that in return for this arrangement, the Appellant would receive $30,000 for the first bogus marriage certificate and $50,000 for the second transaction. The Appellant had taken steps to pursue the conspiracy. He went to the Marriage Registry and obtained the two certificates. In the end, the plans were called off and to give credit to the Appellant he himself decided not to go ahead with the second one. He has one conviction in 1991 for assisting the remaining of illegal immigrants in Hong Kong. I hope I have set out sufficiently the materials upon which I am to decide on this appeal.

4. The Appellant's initial ground of appeal against sentence was that the sentence of twelve months' imprisonment for each count to run concurrently was a harsh one, this morning, when he came before me he had advanced a new ground. This new ground had nothing to do with his appeal against sentence. This new ground, if accepted by me, may lead to a different course of conduct being adopted. He said he did not enter the plea of guilt voluntarily in that he was induced by what one may call a senior police officer who had dealings with his arrest. The gist of the inducement is that the offence was a minor one and he would not go to prison. Although this was raised for the first time, out of a sense of fairness to the Appellant, I held an inquiry. Various reasons had been advanced as to why the matters were raised at this late stage. I do not necessarily have to go into details and again out of sense of a fairness to the Appellant, I purpose to repeat just the gist of what had been said by him in this regard.

5. The Appellant alleged that before his court appearance, he was induced by the senior police officer. He said on two occasions, during his appearance in the Magistracy, he was unrepresented. However, on the day when he pleaded guilty, that is to say on 11th September 1998, he was represented by a barrister of many years standing. He did not tell me why he did not disclose this to his then legal representative. The matter was heard by a Magistrate in court No. 1, Ms. Bina Chainrai. After a very substantial mitigation plea, she then decided to adjourn the matter and in the meantime to remand the Defendant in jail custody. Surely, by then the Appellant must have realised if the police had in fact induced him what he had been told must be a pack of lies. After fourteen days' time, it appears that Mr. Chainrai was no longer sitting in that courtroom.

6. Mr. Michael Jenkins was the Sentencing Magistrate and the Appellant gave his consent to Mr. Jenkins' sentencing him. Mr. Jenkins had the charges read and explained to the Appellant again. The Appellant then pleaded guilty, I should add for the second time round. When I asked the Appellant on this occasion since he was represented by a different barrister why did he not raise the matter of inducement with his new representative, I was informed by the Appellant that the new lawyer told him that he had spoken with a lady Magistrate and he was only to receive a suspended sentence.

7. In addition, the Appellant told me that he committed these two offences out of triad coercion, he said he owed a triad member a sum of $30,000.00 and on the second occasion after he had repaid it there was an additional exorbitant interest of $20,000.00. Out of which, he was only able to pay $10,000.00. The discrepancies in these two versions must be apparent. He told me the first version in his cautioned statement is incorrect because he was afraid of triad influence. The impression I formed having listened to him patiently is that he was not telling me the truth. The only conclusion that can be drawn as a result of this inquiry is that this is not a case where I should entertain any application for reversal of plea.

8. According to a number of common law authorities, a court cannot entertain a reversal of plea after the sentence of the Defendant. There are some Hong Kong cases expressing a contrary view. I need not resolve this issue as I do not accept the Defendant's version. Therefore, my task is confined to looking at the facts of the case and the mitigating circumstances. Quite clearly, the prosecution had accepted that although there was a promise of reward the Appellant never received any money. This is, in the context of a conspiracy charge, not important, but is something that can be said in favour of the Appellant. The Appellant had pleaded guilty and for that the Learned Magistrate had given him a full one-third discount. I note further that although these two offences involved different periods of time, the sentences were ordered to run concurrently. The Learned Magistrate cannot, in my judgment, be criticised for that.

9. Likewise, the Learned Magistrate expressed a view that a proper sentence after trial would have been 18 months. I am in complete agreement with his view. This was after all a deliberate plan to assist others who were not entitled to enter Hong Kong to gain entry under some false pretences.

10. In these circumstances, the appeal must be dismissed.