HKSAR v. CHONG SHUE WENG, DEREK AND ANOTHER

HCMA235/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 235 OF 2009

(ON APPEAL FROM STCC 7622 OF 2008)

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D E C I S I O N

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1. There is before the court an application by the 1^st and 2^nd appellants for a certificate under section 32(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) certifying that “the case engages one or more points of law of great and general public importance”. 

2. On 28 May 2010, this court dismissed the appeals against conviction of the 1^st and 2^nd appellants and that of the 3^rd appellant, together with the latter’s appeal against sentence.  Also, the applications of the 1^st and 2^nd appellants to withdraw their abandonment of their appeals against sentence were dismissed.

3. The charge of which the appellants were convicted alleged that between 1 January 2006 and 4 September 2006 in Hong Kong the three appellants :

“…conspired with TAM SHUK FAN and SHUM KIT PING LESLIE to defraud Hong Kong Immigration Department, for the purpose of obtaining dependent visa for CHONG, DEREK SHUE WENG, by LAM, WING MAU ANDREW, LAI SIU HUNG EDWARD and SHUM KIT PING LESLIE dishonestly arranging TAM SHUK FAN and CHONG, DEREK SHUE WENG to enter into a bogus marriage, to facilitate CHONG, DEREK SHUE WENG to come and settle in Hong Kong on false pretence and representation made to the Immigration Department that CHONG, DEREK SHUE WENG would stay in Hong Kong for re-union with TAM SHUK FAN.”

4. On 28 May 2010, immediately after delivery of the judgment, Mr Ming Tong on behalf of the 1^st and 2^nd appellants applied to the court for a certificate pursuant to section 32(1) of the Ordinance.  The question that was posed was :

“Where parties enter into a valid marriage but do not intend to live together, is their marriage necessarily a shell which would make it dishonest for one party to apply for the grant of a visa status for the other as their dependant.”

5. Although the court indicated that it could hear the application during the week beginning 31 May 2010, at the request of counsel for the 1^st and 2^nd appellants and in order to accommodate the availability of his then leading counsel, the hearing was fixed for 15 June 2010.  No application for or intimation of an application for bail, on behalf of the 1^st and 2^nd appellants was made at that hearing.

6. The amended questions posed for certification are :

“1.   Whether in a charge in which the essence of the allegation is that the accused conspired to induce a public officer or government department to act contrary to his/her or its public duty, the absence of any plea or particular as to what the duty of the public officer or department was makes the charge so defective such that no conviction may be entered upon it; and

2.    Whether in a criminal prosecution the essence of which is the allegation is (sic) that the accused conspired to induce a public officer or government department to act contrary to his/her or its public duty, the absence of any evidence at trial as to what the duty of the public officer or department is makes a conviction unsafe;

3.    Without prejudice to questions 1 and 2 above, whether or not it is (or could be) the public duty of an immigration officer or the Immigration Department to lift the conditions of stay in relation to a person who:

(1)  Is in a homosexual relationship with a Hong Kong resident, the relationship being of a character such that the conditions of stay would be lifted if the couple were a married heterosexual couple; and

(2)  cannot be lawfully married to that Hong Kong resident (whether in Hong Kong or in the country of nationality, domicile or residence of either of them) because they are the same sex;

4.    Whether a marriage that is in all respects valid and effective may yet be in law a “bogus marriage” the contracting of, or arrangement for, is (or maybe) a dishonest and/or unlawful act; and

5.    Whether a marriage that is in all respects valid and effective may yet be in law a “bogus marriage” so that representation to the effect that the parties to the ‘bogus marriage’ are married is (or maybe) a false representation that is dishonest and/or unlawful.”

THE SUBMISSIONS ON BEHALF OF THE 1^ST AND 2^ND APPELLANTS

7. Mr Dykes SC submits that there is no such thing as a “bogus marriage”, rather there is only a valid or invalid marriage.  He refers the court to the judgment of the House of Lords in R (Baiai) v Home Secretary (Nos 1 and 2) [2008] 3 WLR 549 where, at page 563 B-G, Baroness Hale of Richmond said :

“34. A ‘sham’ marriage is still a valid marriage in English law …”

Of the status of such marriages, Baroness Hale went on to say :

35.  This means that the authorities are not free simply to disregard those marriages which they believe have been entered into purely in order to gain some perceived immigration advantage.  No doubt such marriages do take place.  No doubt also they are difficult to detect, not least because of the difficulty of unpicking the variety of reasons why two people might choose to marry one another.  There are many perfectly genuine marriages which may bring some immigration advantage to one or both of the parties depending on where for the time being they wish to make their home.  That does not make them ‘sham’ marriages.

36.  It is not disputed that the Government would be free to deny any immigration advantage to a party to a marriage which had been entered into solely for the purpose of obtaining that advantage.” (emphasis added)

8. It is to be noted that in his judgment, Lord Bingham of Cornhill addressed the issue thus (page 554 D-G) :

“6.   The Immigration Rules, and the right to respect for family life protected by article 8 of the European Convention, confer a measure of protection on some persons having limited or no leave to enter or remain in this country who marry here.  This gives rise to an acute and difficult administrative problem: that persons seeking leave to enter or remain in this country may marry here, not for the reasons which ordinarily and legitimately lead people to marry, but in order to strengthen their claims for leave to enter or remain.  Such marriages have been variously described as “bogus” and “sham” and as “marriages of convenience”.  All are descriptions of marriages entered into for the purpose of securing an immigration advantage.  It is difficult to improve on the definition (which the Secretary of State accepts as apposite) in article 1 of the EC Council Resolution 97/C382/01 of 4 December 1997 on measures to be adopted on the combating of marriages of convenience, according to which a marriage of convenience is:

‘a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State.’”

9. Mr Dykes submitted that the bald representation that the 1^st appellant was married to Ms Tam was true and, without more, was not a false representation.  The documents supplied to the Immigration Department dated 6 September 2006 fell into that category.  The documents supplied at the end of the month and early October, in which in respect of the last document supplied it was accepted false representations were made, were outside the original agreement.

10. Since no evidence was called of the “prevailing immigration policy”, the ambit of the duty of the immigration officer exercising his powers under section 11 of the Immigration Ordinance, Cap. 115 processing the 1^st appellant’s application was unknown.  The 1^st appellant was or could have been entitled to the immigration status that he sought by way of the application.

As to questions 3

11. Given that the 1^st and 2^nd appellants were in a stable, long-term homosexual relationship, by article 37 of the Basic Law and articles 14 and 19 of the Hong Kong Bill of Rights, Cap. 383, they were guaranteed the right to “family life”.  There was no evidence to suggest that there was a material difference in respect of the immigration status sought by the 1^st appellant between his homosexual relationship with the 2^nd appellant and a heterosexual marriage.  Since the issue was never raised the appellants never had the opportunity to call evidence to make good the point.  As such, the appellants were entitled to the same privileges as a heterosexual couple.  By article 1(1) of the Bill of Rights such privileges cannot be withheld merely on the basis of sexual orientation.  Accordingly, the immigration officer processing the 1^st appellant’s application would have had the power to grant it.  A contrary immigration policy was contrary to the Basic Law and/or the Bill of Rights.  Accordingly, an agreement to achieve that end cannot be a conspiracy to procure an immigration officer to act contrary to his duty.

THE SUBMISSIONS ON BEHALF OF THE RESPONDENT

As to questions 1 and 2

12. On behalf of the respondent, Mr Brook submits that the issues raised in respect of questions 1 and 2 only go to the sufficiency of evidence called to support the ‘Particulars’ of the charge.  As such, they do not raise a point of law of great and general importance.

As to question 3

13. Mr Brook submits that the issue addressed in question 3 did not arise in the trial.  No application was made for the grant of the immigration status sought by the 1^st appellant on the basis of his homosexual relationship with the 2^nd appellant, rather “a different fraudulent one was made”.  The duty of the immigration officer processing the application that was made was to “exercise his lawful discretion upon true facts and representations”.

As to questions 4 and 5

14. Mr Brook submits that no issue was taken that the marriage between the 1^st appellant and Ms Tam was valid in law.  Whether the parties to that marriage were dishonest and/or acted unlawfully when making representations related to that marriage “will depend on the factual matrix of a particular case”.  Here, a dishonest conspiracy to defraud.  Accordingly, the issues raised in questions 4 and 5 are not points of law of great and general public importance.

DECISION

As to Questions 1 and 2

15. Although the charge was drafted in an awkward way, it is clear that it was understood at trial by all the parties that the allegation made by the prosecution was of a conspiracy to defraud the Immigration Department acting through an immigration officer, who would be acting as a public officer discharging a public duty.  The nub of the impugned agreement between the conspirators was to use the fact of the marriage of the 1^st appellant to Ms Tam as the basis upon which the 1^st appellant would make an application for a ‘Visa Entry Permit’ for permanent residence on the basis of “Residence/dependant”.  Given that the marriage was a “shell”, the agreement was to make representations to the immigration officer, whose duty it was to process the 1^st appellant’s application, which were not “correct and complete” but which, in true context, were false in material respects (see paragraph 32 of the judgment of 28 May 2010) :

“It is to be noted that each of the four documents, dated 6 September 2004 [Corrigendum: 2006] that was submitted to the Immigration Department and processed by the immigration officer considering the 1^st appellant’s application, required the applicant and sponsor, as appropriate, to sign a document beneath the assertion that ‘The information given above on this page is correct and complete.’  Needless to say, and for obvious reasons, none of the four documents made any reference to the circumstances in which the marriage had been entered into by Ms Tam and (the) 1^st appellant and the fact that it was not intended that they cohabit.  The ‘Sponsor’s certificate’ signed by Ms Tam required her to ‘certify from my personal knowledge of the applicant… that I am able to strongly support the applicant (as) a person whom I believe’, inter alia, is suitable to be allowed into Hong Kong for the purposes stated and will abide by the law of Hong Kong and such restrictions as might be imposed on his working in Hong Kong.  On the date that Ms Tam provided that certification, namely 6 September 2006, Ms Tam had almost no personal knowledge of the 1^st appellant.”

16. The exercise of the discretion of the immigration officer who processed the 1^st appellant’s application in the exercise of his public duty was predicated on the basis that material assertions made in support were true, in particular it being (paragraph 31 of the judgment) :

“… a fundamental pre-requisite of an application for the grant of a visa entry permit on the basis of the applicant being ‘dependent’ (on) Ms Tam, as the sponsor, that the relationship be genuine and not merely a façade.”

17. In my judgment, no issue of law of great and general public importance arises from questions 1 and 2.

As to Question 3

18. Question 3 raises issues of law that were not canvassed in evidence or in submissions before the magistrate or in the grounds advanced on behalf of the 1^st and 2^nd appellants in their appeal.  Even if the two questions posed in question 3 were to be answered in the affirmative and in favour of the appellants, resolution of those issues is irrelevant to the convictions of the appellants.  The application by the 1^st appellant to the Immigration Department was not made on the actual basis posited in question 3.  On the contrary, it was on the basis of his marriage to Ms Tam.  Those representations were false.  Accordingly, no issue of law of great and general public importance arises.

As to Questions 4 and 5

19. There was no issue at the hearing of the appeal that the marriage between Ms Tam and the 1^st appellant was valid in law (see paragraph 30 of the judgment).  The nub of the allegations made against the 1^st and 2^nd appellants was that they were party to an agreement to make false representations to an immigration officer processing that application to be made by the 1^st appellant for a visa entry permit, based on the fact of his marriage to Ms Tam on the basis of “Residence/dependant” in circumstances in which that relationship was a façade (see paragraph 31 of the judgment) :

“Given the undisputed evidence of Ms Tam that she never intended to live with the 1^st appellant ‘as a couple’, and that the purpose of her entry into the marriage for which she was paid was simply so that the 1^st appellant could ‘use the marriage with me to stay here’, clearly the magistrate was correct in describing the marriage as a ‘shell’.  Although Ms Tam and the 1^st appellant enjoyed the status of being married there was no substance to the status at all.  Although no immigration officer was called to testify to the point, there is no doubt that it was a fundamental prerequisite of an application for the grant of a visa entry permit on the basis of the applicant being ‘dependent’ (on) Ms Tam, as the sponsor, that the relationship be genuine and not merely a facade.”

20. In my judgment, questions 4 and 5 pose no issues of law of great and general public importance, rather those matters were resolved at trial and on appeal by reference to the particular facts of this case.

CONCLUSION

21. Accordingly, in the result I decline to certify any of the questions posed as being a point of law of great and general importance involved in the decision the subject of my judgment.