HKSAR v. CHENG KWONG CHUNG AND OTHERS

CACC 536/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 536 OF 2001

(ON APPEAL FROM DCCC 489 OF 2001)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 4 December 2001, following a trial in the District Court before Judge Day, the Applicants (D2, D4 and D7 respectively) were convicted on a variety of charges arising out of an attempt to smuggle two mainlanders (D6 and D7) to the United States of America on a United Airlines flight from Hong Kong on 3 March 2001. The four others (D1, D3, D5 and D6) who were charged pleaded guilty.

2. D2, D4 and D7 were sentenced to terms of imprisonment totalling four and a half years, three years and thirty-two months respectively.

3. D2 now seeks leave to appeal against conviction and sentence, D4 seeks leave to appeal against conviction and D7 seeks leave to appeal against her sentence.

The charges

4. D2 was charged with four offences and D4 was charged with two. In the first and third charges, D2 was alleged to have conspired with some of his co-defendants to possess a false instrument, contrary to section 75(1) and section 159A of the Crimes Ordinance, Cap. 200.

5. The particulars set out in charge 1 were that, between 1 March and 3 March 2001, D2 conspired with D1, D3, D5 and D6:

"to enable Chen Chongfei (D6) to have in his custody or under his control an instrument, namely, a passport of the United States of America numbered 093869827 in the name of Yu Robert (D3), which was and which they knew or believed to be false with the intention of inducing somebody to accept it as genuine and by reason of so accepting it to do or not to do some act to the prejudice of others." (Appeal bundle p. 2)

6. The effect of the allegation made in charge 3 against D2 and D4 was that they had conspired, between 25 February and 3 March 2001, with D1, D5 and D7 to enable Lu Qiufeng (D7) to have in her custody or under her control an American passport, numbered 093869828, in the name of Wong Lai-ming (D4), with the same dual intent set out in the particulars of the first charge.

7. Charges 1 and 3 were paired with charges of conspiracy to defraud, contrary to Common Law. Charge 2, against D2, alleged that he had conspired with the co-defendants named in charge 1, and between the same dates in March 2001, to defraud United Airlines by dishonestly and falsely representing that Chen Chongfei (D6) was Yu Robert (D3) and was entitled to board the UA 896 flight bound for Chicago with a boarding pass in D3's name.

8. Similarly, charge 4 alleged against D2 and D4 that they had conspired with the other co-defendants named in charge 3, and between the same dates, to defraud United Airlines by dishonestly and falsely representing that Lu Qiufeng (D7) was Wong Lai-ming (D4) and was entitled to board flight UA 896 bound for Chicago with a boarding pass in D4's name.

Prosecution's case

9. In essence, it was alleged by the prosecution that two persons, D6 and D7, both from the Mainland, were to be smuggled from Hong Kong to the United States of America. The manner in which this was carried out involved a sophisticated plot to circumvent immigration and airline security procedures at the Hong Kong International Airport.

10. D6 and D7 came to Hong Kong ostensibly as visitors using their genuine Chinese passports. Within two days of his arrival in Hong Kong, D6 was at the airport bound for Chicago on flight UA 896. D7 was similarly destined to go to Chicago on the same flight, albeit some two weeks or so after her arrival in Hong Kong. Both were arrested on 3 March 2001 in possession of false American passports bearing consecutive serial numbers. These passports were forgeries. Their co-defendants, including the Applicants now seeking leave to appeal against conviction, D2 and D4, were allegedly parties to the conspiracies to enable D6 and D7 to travel to USA without proper documents.

11. D3 and D6 gave evidence for the prosecution after they had pleaded guilty to the parts they had played in these conspiracies. Most of the remaining evidence came from ICAC officers, including those who conducted surveillance at the airport, and from facts which were agreed.

12. D3 was an American citizen who had returned to Hong Kong in 1993. While on a visit to Shenzhen, he met D5 and some others who, at a time when D3 had fallen on hard times, persuaded him to take part in the smuggling enterprise. The plan involving D3 was simple. He had to provide his American passport and other details so that an air ticket could be purchased in his name. He then had to present himself at the airport in Hong Kong and check in as someone intending to travel as a normal passenger using his own American passport and the ticket to America which had been acquired by others.

13. He duly went to the airport on 3 March 2001 where he was met by D1, D2, D5 and another man. He was presented with a ticket for flight UA 896 to Chicago and a bag for check-in. Using his American passport, he was able to obtain a boarding pass for the flight in his name. He then handed the air ticket and boarding pass to D5 who put them inside a document resembling an American passport.

14. D3 was not immediately paid for his role. First, he was told to have some breakfast and he went to McDonald's with D1 and D2. D5 and the unknown person went off in another direction. D3 then saw D1 speaking with an older man and woman. Just over two months later, he saw this woman again. This was at a remand hearing when he found her sitting in the dock with him at Tsuen Wan Magistrates' Court. He identified D4 as the woman he had seen speaking to D1 in McDonald's.

15. To complete the picture of events in McDonald's, D1 received a telephone call and then paid D3 the US$1,000 which he had been promised. A seven-minute covert surveillance video-recording of this breakfast meeting confirmed much of what D3 had described. However, it provided no assistance with regard to D4's identification because of the positioning of a column which blocked a side view of her face.

16. The second accomplice witness, D6, to give evidence for the prosecution said that he had paid US$1,000 towards the fee of US$30,000 to be smuggled into the United States. He handed his Chinese passport over when he met D5 and another man in Shenzhen on 28 February 2001. They took him to have his photograph taken. On the following day, he met D1 and another man. D1 returned his passport to him and gave him a ticket from Hong Kong to Kuala Lumpur, an arrival card for Hong Kong, $50 and a telephone number.

17. Later, when D6 came through the immigration checkpoint at Lo Wu, he made a telephone call to the number he had been given and in due course met D7 and another woman. He spent his first night at Mirador Mansion.

18. Then, on 2 March 2001, D6 went to the Panda Hotel with D7 where they checked into the same room. D7 kept the key and D6 gave the receipt for the deposit on the room to a man he met at the Panda Hotel. He thought this was D2 although when he gave evidence at trial he could not be sure. Normally, this evidence would have been too doubtful to be worthy of mention but strong support for this weak identification was provided by other evidence. The rental receipt for Room 1706 in the Panda Hotel bearing D6's name was found on D2 at the time of his arrest at the airport on the following day. The key for Room 1706 at the Panda Hotel, which D7 had been given by D6, was also found on D2.

19. Turning to the events on 3 March 2001, D6 and D7 were escorted to the airport, according to D6, by the man he believed was D2. In fact, this identification was supported by the evidence of ICAC surveillance officers who saw D2 escorting D6 and D7 into the departure hall of the airport and then watching them both check in before accompanying them to the entrance of the area restricted to departing passengers. D6 was told by D1 to check in as if he was flying to Malaysia. D5 then told him to go through immigration and proceed to Gate 21. He followed instructions and, using his Chinese passport and ticket to Kuala Lumpur, he obtained a boarding pass and duly proceeded to Gate 21 where he met D7 once more. An unknown man approached and told them not to sit together. After this, D5 approached D6 and gave him what purported to be a genuine USA passport bearing D3's name and D6's photograph, together with a boarding pass, and told him to go to Gate 61. D6, accompanied by D7, in due course boarded flight UA 896 bound for Chicago. They were both arrested on the aircraft before the flight took off.

20. Turning to D4's role, evidence given by a member of United Airlines staff (PW3) established that someone using D4's name and her HKSAR passport, No. 1022132, had checked in on 3 March 2001 for flight UA 896. D4 was the holder of a Green Card enabling her to travel to USA without requiring a visa. When D4 was arrested in Hong Kong on 13 March 2001, she had her HKSAR passport in her possession. She had not reported it stolen or lost.

21. Someone who resembled her had checked in for flight UA 896 to obtain a boarding pass in her name. D3's evidence that it was D4 who had been in McDonald's that day fitted with the picture that it was D4 herself who checked in, using her own documents, enabling D7 to come into possession of her ticket and boarding pass after the check-in procedures had been completed. There was agreed evidence to show that D7 herself had checked in for a flight to Fuzhou and that the chop in her false American passport purporting to show that she had used that passport to go through immigration controls on 3 March 2001 was also false.

22. D4 did not need to part with her passport or Green Card because D7, like D6, was provided with a forged American passport bearing her own photograph when she got to Gate 21. This was done by D5 whose name had been used to check in on a Cathay Pacific flight to Singapore although D5 did not board that flight.

Defence case

23. Neither D2 nor D4 gave evidence.

D2's conviction application

24. Against this background, Mr Stirling on D2's behalf has alleged in his principal grounds of appeal that the verdicts were unsafe or unsatisfactory and against the weight of the evidence.

25. As we have said already, the evidence disclosed that D2 had accompanied D6 and D7 to the airport on 3 March 2001. The judge was not only satisfied as to this, but as to the fact that D6 and D7 had stayed the previous night at the Panda Hotel and that the hotel receipt and room key had found their way into D2's possession prior to his arrest on 3 March 2001. Furthermore, surveillance evidence established to the judge's satisfaction that D2 waited and watched while D6 and D7 checked in at their respective airline counters before accompanying them to the area restricted to passengers only.

26. In combination, this evidence, taken together with the evidence concerning D3 and D4's check-in procedures, enabled the judge to conclude that D2 was a party to the conspiracies to possess a false instrument. The conspiracies to defraud were approached by the judge in the following way:

"There was some suggestion that the offences of conspiracy to defraud had not been made out as there had been no economic loss to United Airlines. At common law a conspiracy is defined as an agreement between two or more persons to do an unlawful act, or to do a lawful act by unlawful means. The meaning of 'defraud' in such an offence was considered by the Privy Council in 1992 where, approving the observations of Lord Denning and Lord Radcliffe in Welham v DPP [1961] AC 103, they said, at page 276:

'This authority establishes that the expression "intent to defraud" is not to be given a narrow meaning, involving an intention to cause economic loss to another. In broad terms, it means simply an intention to practise a fraud on another, or an intention to act to the prejudice of another man's right."

Lord Denning himself had said in Welham:

'It is not limited to the idea of economic loss, nor to the idea of depriving someone of something of value.... Put shortly, "with intent to defraud", means with intent to practise a fraud, on someone or other. It need not be anyone in particular .... If anyone may be prejudiced in any way by the fraud, that is enough.'

The prejudice here was to United Airlines who, the evidence showed, would have to have paid a fine had they flown passengers to America without valid visas and whose reputation would be tarnished by carrying illegal immigrants to America. The intention to 'practise a fraud' on another is plain as is the prejudice to be suffered by the Airline." (Appeal bundle p. 43)

27. In our judgment, there was plainly an abundance of evidence on which to convict of both kinds of conspiracy included in counts 1 to 4.

28. These grounds were without substance.

29. Mr Stirling's next ground of complaint was covered in his written argument where he submitted that the judge had insufficient evidence on which to find "as a fact that the instrument the subject of (charge) 1 was false".

30. In the court below, the prosecution unaccountably failed either to produce evidence that the passport which was seized from D6 was in D3's name, Robert Yu, or to produce the passport itself. Nevertheless, the judge was satisfied that this did not matter because, although the conspiracy charge referred to the name and number shown on the passport, these details were "mere surplusage" to a charge which essentially alleged a conspiracy to possess a false American passport. The judge went on to say:

"There is convincing evidence that D6 (PW2) came to Hong Kong intending to be smuggled to the USA. He did not have an American passport or visa. He checked in as if going to Malaya on his Chinese passport and was met 'airside' by D5 who gave him tickets, a boarding pass and a passport to America. They cannot have been genuine documents in D6's name and must have been false.

I was anxious that the defence should not be prejudiced by my viewing the evidence in this light and gave them the opportunity to address me on this. I also confirmed, although it must be obvious, that if the prosecution had presented their case like this from the outset the defence would not have been run differently." (Appeal bundle p. 42)

31. Mr Stirling alleged that this reasoning effectively reversed the burden of proof and called upon D2 to prove that the passport in his possession was not in Robert Yu's name.

32. The judge's approach, in our opinion, was entirely proper and his conclusion was in accordance with the evidence which clearly established that whatever passport D2 held, it must have been false.

33. In the last complaints raised in Mr Stirling's grounds with which it is necessary to deal, as many overlapped with each other, he alleged an abuse of process in causing D2 to be prosecuted for the conspiracies to possess false instruments in counts 1 and 3 as well as the conspiracies to defraud in counts 2 and 4 "since the elements constituting (the offences in charges 1 and 3), when established, are wholly included in the elements of (the offences in charges 2 and 4)". Mr Stirling alleged that D2 had "thereby (been) placed in jeopardy of and was in fact convicted and sentenced twice for the same offence". This was not a point raised in the court below.

34. The merest glance at the two kinds of conspiracy alleged against D2 is enough to illustrate the difference between them. Of course, the evidence which went to the proof of the conspiracies arose from the same facts, but the conspiracies required proof against D2 of an agreement (on charges 1 and 3) with one or more persons to enable Chen Chongfei (D6) and Lu Qiufeng (D7) respectively to possess a false passport whereas on charges 2 and 4 respectively, it had to be proved that D2, with one or more persons, agreed to defraud United Airlines by dishonest and false representations that Chen Chongfei (D6) was entitled to board flight UA 896 as Robert Yu (D3) and that Lu Qiufeng (D7) was entitled to board flight UA 896 as Wong Lai-ming (D4).

35. Charges 1 and 3 were wider than charges 2 and 4 and different in material aspects. The conspiracies to possess the forged passports envisaged their use in Hong Kong, if necessary, and certainly their use abroad to effect false entry there. On the other hand, the conspiracies to defraud involving the use of the boarding passes constituted quite another and more limited matter. Insofar as Mr Stirling contended that the passports had to be used to obtain the boarding passes, that is a submission based on a false premise because in this case the boarding passes were obtained on presentation of genuine passports and the false passports were for use quite separately.

36. Whilst Mr Stirling put forward other grounds, these were effectively incorporated in those with which we have already dealt.

37. D2's application for leave to appeal against conviction is dismissed.

D4's conviction application

38. Mr David Khosa, on D4's behalf, submitted that the evidence against D4 was in such a state as to render her convictions unsafe or unsatisfactory. This was, he argued, because the judge "had erred in ruling that the identification evidence of PW1 relating to (D4) was reliable" and because the judge "erred in drawing the inference that it was (D4) who had checked in at the airport using her own documents".

39. The evidence concerning the identification of D4 by D3 was given careful scrutiny by the trial judge in his Reasons for Verdict where he noted that Mr Khosa, who also defended in the court below, had been "particularly anxious to impugn" this evidence. The judge kept the guidelines taken from R v Turnbull [1976] 3 All ER 549 in mind when assessing this evidence. In the event, the judge found that D3 was unshaken. The particularly telling parts of D3's evidence concerning his identification of D4 were summarized by the judge in the following way:

"Although he had not spoken to the woman as they breakfasted he had sat next to her for a not inconsiderable time, only one or two feet from her. Seven minutes was accepted by defence counsel in his closing address and that is a long time to be sitting at a small table next to someone. He was pressed as to why he should pay special attention to her and, clearly embarrassed, he said he took particular note of her appearance 'because she is ugly.' Counsel says 'Look at my client, she may be plain but she is not ugly'. I have a degree of sympathy for the unfortunate fourth defendant, being openly discussed in so personal a way but the fact is that appearance is in the eye of the beholder, to paraphrase a little, and in my view Mr Yu (D3) may reasonably have held that opinion. He next saw her in Tsuen Wan Magistrates' Court and denied that he thought she was the lady from McDonald's simply because she had been charged with the others and indeed I do not see why he should. He had no idea the two he met at McDonald's were involved in the offences and she was not presented to him as having been at McDonald's on the 3rd March. I accept that he had not seen her for 2 months or so, but he had, on his evidence, sat next to her for quite some time. He had his own reason for taking particular note of her appearance and when he walked into court he immediately placed her. I have no difficulty with this evidence." (Appeal bundle pp. 33-34)

40. It is apparent that the judge had paid careful regard to all the important factors affecting this aspect of the evidence. We do not consider that on this ground any reason has been advanced which would justify our interference with D4's conviction.

41. In his second ground of appeal, Mr Khosa argued that the judge had erred in drawing an inference that it was D4 "who had checked in at the airport using her own documents".

42. Whilst it is true that none of the witnesses was able positively to identify D4 as having checked onto flight UA 896, PW3, whose job was to check in passengers for that flight, was able to say from the relevant parts of the computer record kept by United Airlines that a female passenger calling herself Wong Lai-ming, with a date of birth and numbered passport which were also exactly the same as D4's, checked in on 3 March 2001. PW3 also explained in the course of her evidence that it was part of her job to check the passport photograph with the face of the passenger who was checking in. PW3 said that the standard of care she exercised in her duty to check the identification of passengers by comparison with their passports was "until I'm satisfied that the photo resembles the one who presented the passport."

43. The ticket which this particular passenger presented and the boarding pass which PW3 gave to the passenger were later seized from D7 on her arrest on board the aircraft.

44. Mr Ryan, on behalf of the Respondent, rightly observed in his written argument that in giving his Reasons for Verdict, the judge looked at the combined effect of all the factors we have set out, including the fact that D4 had never reported her passport or Green Card lost or stolen and that no one with D4's name had passed through immigration on 3 March 2001. The judge concluded that while all of this evidence "might not be enough to force a conviction", the identification of D4 as the woman D3 had seen in McDonald's satisfied him that it could only have been D4 who had checked in, using her own travel documents to do so.

45. Again, we have been provided with no argument which could cause us to interfere with the wholly sensible findings of the judge.

46. D4's application in regard to conviction is dismissed.

D2 and D7's sentence applications

47. D2, through counsel, and D7 have each advanced arguments which suggest that the sentences they received were manifestly excessive.

48. Mr Stirling submitted that as the method by which D2 operated on each of the smuggling enterprises was the same and that as the offences were committed on the same date, wholly concurrent sentences for each pair of offences were appropriate. His complaint was not that the judge had passed three-year sentences on all these charges, but that one and a half years' imprisonment was ordered to run consecutively on the second pair of offences in charges 3 and 4, making four and a half years' imprisonment in all. A further suggestion was that these offences amounted to only one course of conduct and that a sentence for conspiracy to smuggle one illegal immigrant should be no longer than that for conspiracy to smuggle two or more.

49. We do not agree with these submissions. These offences were extremely well planned. D6's evidence that he had paid US$1,000 towards the full fee of US$30,000 indicates the level of the financial rewards to be expected from this form of human trafficking. D2 had been directly involved with both the intended emigrants to USA. As the judge aptly expressed his role, he was:

"one without whom the conspiracy could not work. He may not be the originator of the scheme but he puts it into practice." (Appeal bundle p. 53)

50. This was a sophisticated course of conduct, and not a one-off episode. Had substantive charges been preferred, it could not properly have been suggested that concurrent sentences would have been appropriate. It would, of course, be illogical to take a different view just because conspiracies were charged.

51. We take the view that offences such as these are very serious. They involve the exploitation of persons on the Mainland, for substantial sums, exploitation which is no doubt financially crippling to the emigrant and his or her family and which puts the emigrant at continuing risk. Beyond that, and importantly, the offences deliberately seek not only to undermine Hong Kong's laws but also the immigration laws of other jurisdictions, and to enable persons to travel on aircraft when they are not authorised to do so. It hardly needs to be emphasised that conduct of this kind is to be treated by our courts with a firm hand, not least when air security and international immigration controls carry an importance greater than ever before. In our judgment the sentences imposed upon D2 were wholly appropriate.

52. D7 was unrepresented. Apart from charges 3 and 4 on which she was convicted, she had also pleaded guilty to charge 8 which alleged that she had made a false representation to an Immigration Officer in a departure card on 3 March 2001, namely, that her destination on departure would be Fuzhou. The sentences she received were thirty-two months on charges 3 and 4 and twenty-seven months' imprisonment on charge 8. The judge ordered that these sentences were all to run concurrently.

53. In her homemade grounds of appeal, D7 spoke of her complete ignorance of the law in Hong Kong, her homesickness and her concerns for her bedridden mother. In court, she spoke of having been guilty of a "momentary slip" which had not been premeditated and that she had always felt remorse for what she had done. These statements in court we do not accept. The offences involved considerable planning and were not mere slips. We cannot accept her expressions of having always been remorseful because D7 contested two of the charges throughout. Nothing she has been able to say could reduce the sentence imposed on her for offences of this seriousness.

54. The applications of D2 and D7 in relation to sentence are dismissed.