HKSAR v. FANG SIYUAN

DCCC 467 & 1116/2024 (Con.)

[2026] HKDC 741

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 467 OF 2024 AND 1116 OF 2024

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REASONS FOR SENTENCE

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1.  Defendant is convicted after trial of 2 counts of possession of a false or forged documents (Charge 1 and 2)  and 2 counts of obtaining services by deception (Charge 3 and 4).

Facts

2.  The facts of the case have already been set out in details in the Reasons for Verdict[1] and I will not repeat the same here.

Charge 1

3.  On 29 August 2023, ICAC officers entered a premises located at Starcrest in Wanchai pursuant to a search warrant.  Defendant was the only person present inside the premises.  Upon search, a rucksack was found.  Inside the rucksack, a number of identification and travel documents which bore the Defendant’s name, together with a white card were discovered. 

4.  Upon further search, a locked safe was located inside the wardrobe of the master bedroom.  Locksmith was arranged and the safe was then opened. Inside the safe, a Canadian passport, which bore the Defendant’s photograph was found.  I find that the Canadian passport is forged and I also find that the personal particulars contained in that passport, namely the name, date and place of birth are false.  I also find that the Defendant was in possession of the forged Canadian passport at the material time.

Charge 2

5.  Another search was conducted by the ICAC officers and officers from the Security and Futures Commission at an office in Wanchai on the same day.  The white card, which was found inside the rucksack, was use to open a locked hidden door in that office.  A locked safe was then discovered in one of the cabinets inside that room.  Locksmith was arranged to open that safe.  A Mexican passport which bore the Defendant’s photograph was found inside the safe.  I find that the Mexican passport contained false particulars, namely, the name, date and the place of birth and the Defendant was in possession of the false Mexican passport at the material time.

Charge 3 and 4

6.  Defendant used the Mexican passport which contained false personal particulars to open bank accounts in Shanghai Commercial Bank Limited (“ShaCom”)  (Charge 3)  and Bank of Communications Limited (“BoCom”)  (Charge 4). I find that the Defendant dishonestly obtained banking services from the above banks by deception.

Defendant’s Background and mitigation

7.  Defendant is 38 years old, married with one son.   Defendant has a clear record.

8.  Senior Counsel has provided the court with a summary of Defendant’s background in the written mitigation submission.  

9.  Defendant obtained his bachelor’s degree in Shanghai in 2008 and since then he embarked on the journey of being a successful entrepreneur.  It is described that his business is multinational and diversified, and Defendant’s aggregated international assets are estimated to be over 1 billion RMB. 

10.  Regarding Defendant’s health, Defendant is diagnosed with asthma, chest infection, severe obstructive sleep apnea and turbinate hypertrophy, and ischemic heart disease and is currently on medications and follow up medical consultations.  He is also diagnosed with anxiety and depression as he occasionally witnessing auditory hallucinations since April 2025, and he is taking antidepressant and hypnotic medications.

11.  Several mitigating letters written by ex-legco member, businessman, friend and Defendant’s beneficiary were submitted.  They described Defendant as an industrious, trustworthy and visionary entrepreneur endowed with a profound sense of social responsibility, and always in a position to assist the underprivileged by all means. 

12.  It is submitted that Defendant has made substantial charitable donations to various organizations and institutions, including but not limited to, 1 million RMB for construction of a Buddhist temple and 200,000 RMB to a Christian church as building pledge in 2022.

13.  For the sentence of Charge 1 and 2, Senior Counsel referred the court to:

(i)  HKSAR v. Hazrat Rahman (unrep, HCMA 872/2006, 8 December 2006);

(ii)  R v. Yu Wing-wut (unrep, CACC 346/1984, 6 September 1984);

(iii)  R v. M.D. Khasru Mia (unrep., HCMA 1057/1995, 17 January 1996);

(iv)  R v. Gafni Zvi [1989] 1 HKLR 167;

(v)  R v. Wang Ju-wen [1989] 2 HKLR 26; and

(vi)  HKSAR v. Lin Meng Chang (unrep., CACC 146/2009, 3 November 2009)

14.  Senior Counsel invited the court to adopt a starting point of no more than 9 months’ imprisonment and no more than 18 months’ imprisonment for charge 1 and 2 respectively.

15.  For sentence of Charge 3 and 4, it is submitted that charge 4 carried lesser culpabilities as the banking activities maintained in the BoCOM accounts were nearly dormant.  References were drawn to the sentence laid down in HKSAR v. Kum Chi Wing Ralph (unrep., CACC 445/2006, 16 May 2007), HKSAR v. Renato Cemine Tandac (unrep., CACC 337/2002, 18 December 2002)  and HKSAR v. Nzimbi (unrep., DCCC 356/2012, 29 May 2012)  and the court is invited to adopt a starting point of no more than 18 months imprisonment for charge 3, with a lesser starting point for charge 4.

Consideration of Sentence

16.  There are no sentencing guidelines for the offence of possession of a false or forged passport.  The maximum sentence is 14 years’ imprisonment. 

17.  In Harzat Rahman, 3 forged passports, each in a different name was found in the appellant’s luggage when he arrived in Hong Kong on a flight from London via Zurich.  He was convicted of a single charge of possession of false travel document after trial and sentenced to 18 months’ imprisonment. Deputy High Court Judge Longley stated that sentence of 18 months’ imprisonment was upheld in R v. Wong Kwai-pui HCMA 796 of 1987 and Yu Wing-wut for this offence where only one forged passport was involved and where the Defendant pleaded guilty.  His Lordship emphasized that gravity of this offence is that it deprives the immigration authorities of the countries where they used of knowing the true identity of the person they are permitting to enter their countries.  His Lordship is of the view the appellant was trafficking those passport for the benefit of others.  The appeal was dismissed.

18.  In Yu, the appellant was arrested while attempting to leave Hong Kong from Kai Tak Airport when he presented a genuine passport from which the original photograph had been removed and his own substituted in its place.  He was later found to be remaining in Hong Kong illegally.   He was sentenced to 3 years’ imprisonment for possession of the false passport and of one year for the unlawful remaining.  The Court of Appeal allowed the appeal and reduce the sentence of the possession charge to 18 months’ imprisonment.  

19.  In M.D. Khasru Mia, Hon Duffy J stated that for possession of a forged travel document, the range of sentence is from 6 months’ to 18 months’ imprisonment, and the normal sentence is 9 months.  However, the facts of the case, nor the basis of such rationale were referred to in the judgment.

20.  In R v. Gafni Zvi [1989] 1 HKLR 167, the appellant pleaded guilty of 5 charges, including one count of possession of a false Singapore passport in the applicant’s name and one count of possession of 5 false Philippine passports found in the appellant’s office. For each of this offence he was sentenced to 2 years’ imprisonment.  On appeal, the Court of Appeal reiterated that each case must be judged in light of its own facts.  Their Lordships observed that the appellant did not possess these passports for the purpose of furthering an illegal passport racket, nevertheless, the possession, and indeed the use, of the false passports does affect the comity of nations.  The Court of Appeal accepted that the appellant was involved to the extent that he was a customer of the racketeers.  The appeal was allowed and the original sentence of 2 years’ imprisonment on the possession of false passports charges were substituted with a sentence of 9 months’ imprisonment on each court to be run concurrently.

21.  In R v. Wang Ju-wen, the appellant pleaded guilty to 5 charges, two of which were possession of false passport.  He was found in possession of a genuine Malaysian passport in another name which bore his photograph and signature, and had used this passport on 16 occasions to enter and leave Hong Kong.  He was also found in possession of a Philippine passport in another which also bore this photograph and was signed by him.  He also used this passport to enter into Hong Kong.  He was sentenced to 18 months’ imprisonment each for this 2 charges.  On appeal, the Court of Appeal upheld the sentence of the possession charges and added that, it might be an aggravating factor if it could be established that the passport was used to further a criminal enterprise. 

22.  In Lin Meng Chang, the appellant pleaded guilty to one count of possession of false instrument and 4 counts of conspiracy to deal with property known or believed to represent proceeds of an indictable offence.  The appellant had in his possession 2 false PRC entry and exit permits for Taiwanese residents in false names and a false Republic of China-Taiwan passport in false name.  The appellant stated that he used those false travel documents to open bank accounts in the names of the holder of these false passports, he also accepted that he used those bank accounts for money laundering purposes.  He was sentenced to 1 year imprisonment after plea for the possession charge.  The Court of Appeal upheld the sentence of the possession charge.

23.  For charge 1, there is no evidence that the forged Canadian passport was used for any purpose at all.  However, as stated in Yu and Hazrat Rahman, the gravity of this offence is that it deprives the immigration authorities of the countries where they used of knowing the true identity of the person they are permitting to enter their countries.  Having considered all the facts and circumstances, I will adopt a starting point of 9 months imprisonment for charge 1. 

24.  There is proof that the Defendant had made significant donations to various organizations and institutions before he was arrested.  In recognition of making these donations, I reduce the sentence of charge 1 by 1 month. 

25.  Defendant is convicted after trial and his health condition is not life-threatening and does not warrant further reduction of the sentence.  He is sentenced to 8 months’ imprisonment for charge 1.

26.  For charge 2, the false Mexican passport was used to open the bank accounts in ShaCom and BoCom.  I will take a starting point of 18 months’ imprisonment, and reduce to 17 months’ imprisonment in recognition of Defendant’s charitable donations.  He is sentenced to 17 months’ imprisonment for charge 2.

Charge 3 and 4

27.  There is no sentencing tariff for the offence of obtaining property by deception.  The maximum sentence is 14 years’ imprisonment.

28.  In Kum Chi Wing Ralph, the appellant pleaded guilty to 5 counts of obtaining pecuniary benefits by deception and one count of fraud.  He used a forged Hong Kong Identity card, with false details apart from his name and photograph, to obtain 5 credit cards from various banks, and 1 credit card from a credit card company.  Appellant had been making periodic payments to the bank and credit cards’ companies for over a period of 4 years and yet the total loss of the credit providers was about HK$220,000.  The trial judge adopt a starting point of 3 years’ imprisonment for the offences. The sentence was upheld by the Court of Appeal.

29.  In Renato Cemine Tandoc, the appellant pleaded guilty to 1 count of using a false instrument and 4 counts of money laundering.  The facts of the case revealed a syndicate which ran a “boiler room” share fraud targeting investors worldwide.  The syndicate used nominee companies and Hong Kong bank accounts to receive and move fraud proceeds.  The appellant’s role was to come to Hong Kong to register new companies and open their bank accounts, and act as the sole signatory to those accounts.  In respect of the using false instrument charge, he used a Philippines passport bearing his photograph but with a false name to purchase 2 shelf companies.  The passport was used to conceal his true identity while he helped building the banking structure for the use of the syndicate.  The Court of Appeal stated that the appropriate starting point for the using false instrument was 4 years’ imprisonment.

30.  The Defendant in Nzimbi used 8 false identities and 8 false passports to open 16 bank accounts in different banks over a period of 25 months.  She deposited over HK$61,000 and attempted to deposit a forged cheque of USD$82,311.68.  The Deputy Judge opted that the facts were not as serious as those in Renato Cemine Tandoc and took a starting point of 18 months’ imprisonment for the offence of using false instrument.

31.  As revealed at trial, the ShaCom Accounts were used on a regular basis by the Defendant throughout the period from January 2021 to August 2023. Though there is no evidence that Defendant had used the ShaCom Accounts for unlawful or illegal purpose, he did open and operate the accounts by using a false identity.  The importance of the regulatory compliance by financial institutions in Hong Kong, with the aim to protect the integrity of the financial system and prevention of using those institutions to perpetuate crimes, for example, as a vehicle for money laundering, cannot be underestimated.  The court will take a serious view for any attempt to bypass the safeguards by illegal and unlawful means.

32.  For charge 3, I will adopt a starting point of 18 months’ imprisonment. For charge 4, given the BoCom Accounts were almost dormant since opening, I will adopt a starting point of 15 months’ imprisonment.  The sentence was reduced to 17 months’ and 14 months’ imprisonment respectively in recognition of Defendant’s charitable donations.  Defendant is sentenced to 17 months’ and 14 months’ imprisonment for charge 3 and 4 respectively.

Totality

33.  It is submitted that the Defendant obtained the forged Canadian passport and the false Mexican passport from substantially the same channel, i.e., via the immigration agencies in China by his assistant and Senior Counsel urged the court to order the sentence of charge 1 and 2 to be run wholly concurrent.

34.  I have already rejected the evidence in that regard. 

35.  I consider charge 1 and 2 are separate and distinct offences.  Having regard to the totality principle, I will order 3 months’ imprisonment of charge 1 to be run consecutively to the sentence of charge 2.

36.  For charge 2, 3 and 4, I accepted they are part and parcel.  In assessing the sentence of charge 2, I have already taken into account that the false Mexican passport was used to open the ShaCom accounts and BoCom accounts.  I will order 6 months’ imprisonment of charge 3 and 6 months’ imprisonment of charge 4 to be run consecutively to the sentence of charge 2.

Sentence

37.  The sentence is as follows:

Charge 1: 8 months imprisonment, 3 months consecutive to charge 2.

Charge 2: 17 months’ imprisonment.

Charge 3: 17 months’ imprisonment, 6 months consecutive to charge 2.

Charge 4: 14 months’ imprisonment, 6 months consecutive to charge 2.

38.  The total sentence of all 4 charges is 32 month’s imprisonment.