HKSAR v. LEUNG FUK CHUEN

DCCC1066/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1066 OF 2011

----------------------

---------------------

Reasons for Verdict

---------------------

1.  D1, you pleaded not guilty and, D2, you pleaded guilty to a single joint offence of conspiracy with others to obtain services by deception, contrary to section 18A of the Theft Ordinance, Cap. 210 and section 159A and 159C of the Crimes Ordinance, Cap. 200.

2.  D2, you admitted the brief facts which the prosecution used for the opening for D1 and I convicted you.  The prosecution case was as follows:-

3.  At about 1330 hours on 25 May 2009, Mak Miu, PW1, a Hong Kong resident approached counter No. 7 of Zone C at the airport to check in.  After checking in, Miss Lai Kit-yee of Cathay Pacific handed a boarding pass to PW1 in his name.  At about the same time the prosecution contend D1 checked in at counter 5 using his passport and received a boarding card.

4.  At about 1615 hours Immigration Assistant Chau Cheuk‑kai, PW3, and Chief Immigration Assistant, Chiu Ka‑Po, PW4, intercepted three mainland residents, Liu Zonghui, Wang Wenman and Chen Yong at the boarding gate of flight CX838 which is bound for Vancouver.  Liu produced a forged Hong Kong SAR passport and a boarding pass in the name of D1.  Wang a forged Hong Kong SAR passport and boarding pass in the name of Chan Hung-cheong.  Chen produced a forged HKSAR passport and boarding pass in the name of PW1.  All three mainlanders were arrested.

5.  On 24 June 2009, PW1 was arrested at his home and said he had been invited by you, D1, and D2 to facilitate human smuggling of mainlanders for money.  D1 and D2, you both were arrested on 6 August 2009 and 28 September 2009 respectively.

6.  PW1 told the Immigration officer that you, D1, and you, D2, had introduced a person called Chan Ka-bo Adidas who arranged smuggling of mainlanders to Canada.  PW1 met you both in a restaurant in Shenzhen in March 2009.  PW1 told you, D1, he was short of money and wanted a job.  You both told him that a friend, Ah Bo, had asked you, D2, to escort mainlanders to sneak to Canada, $15,000 was to be the reward for each. 

7.  The operation of the fraud was as follows:-

1) Upon arrival at the airport, you, D2, would pass the Immigration departure counter with an illegal immigrant following destined for Canada. Both would use genuine travel documents and genuine names and identities.

2) After passing the Immigration counter, you, D2, would enter a toilet where you would leave a magazine containing a passport and a boarding pass of a person who would not board the flight.

3) The illegal immigrant would pick up the documents which were in someone else’s name and board the flight to Canada with you, D2. At the boarding gate, D2, you would use your genuine passport and boarding pass and the illegal immigrant the ones in another name.

4) Upon arrival in Canada, D2, you would separate from the illegal immigrant who would surrender to the Canadian authorities. You would then collect the luggage of the person who did not board the flight, destroy the airline tags, enter Canada and stay a few days before returning to Hong Kong.

5) D2, you said Ah Bo would buy a HKSAR passport for $1,000 and ask PW1 if he was interested in selling his. After returning home, PW1 got his passport and phoned Ah Bo on the number provided by you, D2.

6) That day PW1 met Ah Bo at Tai Po Railway Station. Ah Bo said he would not buy the passport but persuaded PW1 to assist in obtaining the boarding pass for $4,000 which PW1 agreed to do.

7) At the end of April 2009, Ah Bo phoned PW1 and got his personal particulars to buy the airline ticket. At noon on 25 May 2009, PW1 met Ah Bo, you D1, you D2 and an unknown male at Sheung Shui Railway Station where Ah Bo instructed them what to do at the airport. At Ajisen Restaurant in the airport, a female and a male called Ah Chan Hung-cheong joined them. Ah Bo left and returned to give electronic airline ticket to PW1, D1 and Ah Cheong. He told them to learn the information on them to answer airline staff if questioned. They were each given a piece of luggage to check in for flight CX838. After getting the boarding passes as instructed by Ah Bo, they returned to the restaurant and waited. Seven of them then went to Terminal 2. After collecting their boarding pass, Ah Bo, you D2, the female and the unknown male left. About one hour later, Ah Bo returned and gave PW1, you D1 and Ah Cheong $4,000 each. He said the smuggling operation had failed because some of the people stood in the wrong position at the boarding gate.

8) As the three mainlanders had been arrested at the boarding gate, the plan for you, D2, to accompany them to Vancouver on CX838 failed, therefore D2 boarded alone. This is confirmed by Immigration records. You, D2, were deported from Vancouver to Hong Kong on 27 May 2009.

8.  Under caution, you D1, denied the offence. Under caution, D2, you stated you were waiting to board the aircraft with Ivy and Ah Leung at about 2 pm.

9.  The prosecution case was embodied in the Agreed Facts being P18 and P20, the exhibits produced thereby and one live prosecution witness being PW1, Mak Miu.  I turn now to the Agreed Facts, P18.  These were admitted in court under section 65C of the Criminal Procedure Ordinance, Cap. 221.  They establish and produce as appropriate the following:-

1) D1, D2 and PW1, you are all Hong Kong residents.

2) D1, you are of clear record.

3) Liu Zhonghui and Chen Yong are mainlanders with no right of abode in Hong Kong.

4) Cathay flight CX838 was to depart Hong Kong to Vancouver at 4.35 pm on 25 May 2009. The names of you, D1, D2 and PW1 were on the passenger list.

5) At the material time, the Dragonair flights KA604 and 662 were scheduled to depart Hong Kong for the mainland on 25 May 2009. The names of Liu and Chen were on the passenger list of those two flights.

The Check-In

10.  At about 1.24 pm on 24 May 2009, a person representing himself to be you, D1, checked in at counter 5 then the Cathay Pacific desk for the flight.  He presented passport No. K01146588 in the name of you, D1.  A member of Cathay staff first checked the photo of the passport against the person’s appearance and then scanned the data into the computer system.  The person obtained a boarding pass.  The following exhibits are produced:-

11.  a) The printout of the check-in and booking record under your name, D1, from Cathay’s computers with other relevant computer certificates, P1; and

b) The boarding pass in your name, D1, that is P2.

11. At about 1.30 pm that day at counter No. 7, PW1 presented his genuine Hong Kong SAR passport for checking in and received a boarding pass. The following exhibits are produced:-

12.  a) A printout of PW1’s check-in and booking record on Cathay’s computer system with the relevant computer certificate, P3;

b) PW1’s boarding pass, P4, and;

c) PW1’s genuine passport No. H01116637 which is P5.

12. At about the same time, Liu and Chen checked in for their flights in the mainland using their genuine ID documents. They then went through the passport control and entered the restricted area.

The arrest of Liu and Chen

13.  At about 4.15 pm, Immigration officers intercepted Liu and Chen as they queued for the flight at a boarding gate.  Chen produced a forged Hong Kong SAR passport bearing his photo but in the name of PW1 and PW1’s boarding pass which is P4.  Chen alleged his name to be Mak Miu, PW1.  Under further questioning Chen surrendered the following documents:-

a) Chen’s PRC entrance and exit permit in his own name, P16 and P16A which is the translation.

b) Chen’s PRC ID card in his name.

c) An electronic air ticket for the flight in the name of PW1, P6.

d) Electronic air ticket for flight KA604 in his nickname, the copy is P7.

e) A boarding pass for KA604 in Chen’s name, P8.

14.  The forged HKSAR passport copy, P9, in PW1’s name, the Government Chemist’s report confirming it to be forged which is P10.

15.  Liu produced a forged HKSAR passport bearing his photo but in the name of you, D1, and the boarding pass under your name, D1, which is P2.  Liu alleged his name to be Leung Fuk‑chuen, that is yours, D1.  On further questioning Liu surrendered the following documents to the Immigration assistant:-

a) Liu’s PRC entry and exit permit in his name.

b) Liu’s PRC ID card.

c) Electronic ticket for the flight in D1’s name, P11.

d) A boarding pass from KA604 in Liu’s name, copy P12.

16.  The forged HKSAR passport of you, D1, is produced as P13 and the confirming Government Chemist report is P14.

17.  Both Liu and Chen were arrested by Immigration authorities on 27 May 2009.  Each was convicted on their pleas of guilty of possession of a forged travel document and making false representation to an Immigration assistant and sentenced to 10 months’ imprisonment.

18.  D2 boarded the flight and was deported from Vancouver and returned to Hong Kong on 27 May 2009.  His electronic ticket is produced as P15. 

19.  I turn now to the arrest of PW1, you D1 and of course you D2.  In June 2009, PW1 was arrested by Immigration Department and charged with conspiracy to obtain services by deception and pleaded guilty at the District Court on 6 May 2011.

20.  On 6 August 2009, D1, you were arrested by the Immigration Department.  That day you gave a voluntary statement under caution now produced as P17 and P17A for the certified translation.

The Second Admitted Facts P20

21.  These were admitted in accordance with section 65C of the Criminal Procedure Ordinance, Cap. 221.  These facts prove that you, D1, made an application for a passport on 4 May 2009.  That application form is produced as P19.  On 19 May 2009, you collected that passport and signed an acknowledgment which is P19A. 

22.  The only live prosecution witness was Mak Miu who was on remand at Lai Chi Kok awaiting sentence for his part in this scheme.  He knew you, D1, and you, D2, before this incident.  D1, you had been his superior when he worked in transportation at the end of 2007 and through 2008.  You, D2, were a colleague.  He said he pleaded guilty as charged in May 2011 he and others conspired together to help mainlanders sneak into Canada. 

23.  He spoke of a meeting in March 2009 in a restaurant in Shenzhen just after Chinese New Year.  Also present were both you, D1, and you, D2.  He initiated it as he wanted to ask you, D1, for a job. D2 spoke of taking a person to Canada for $15,000.  PW1 then asked about this but you, D1, said it would not suit him.  D2 said he knew a person who might buy his passport and he phoned someone.  He said it was Ah Bo who he later knew to be Chan Ka-bo Adidas.  D2 described the scheme to him including how he received $15,000 for each mainlander he took to Canada. 

24.  He described to PW1 the passing of the boarding pass and the forged passport in a toilet in the restricted area.  These matters PW1 said were actually told to D1, he just overhead you, D2, speaking to D1. D2 said Ah Bo was the mastermind.  D1 made little response.  In fact, PW1 said D1 said it was not suitable for him.  After arrival in Canada, D2 would collect the luggage of the illegal immigrant and enter Canada before returning to Hong Kong. 

25.  You, D2, asked PW1 to try the sell the passport to Ah Bo and gave him his phone number.  At a subsequent meeting, Ah Bo rejected PW1’s passport but recruited him to assist in the smuggling of illegal immigrants for which he would received $4,000.  As a result, Ah Bo called him in late April to obtain his particulars to buy tickets.  The flight was to take place on 25 May 2009. 

26.  He said that on 25 May 2009 he met Ah Bo, you D1 and D2 at Sheung Shui bus stop after 10 am and they went to the airport.  Also a Chinese male who was a little plump but PW1 did not know him.  At the airport they went to Ajisen Restaurant and were joined by a male and a female.  There Ah Bo gave air tickets to you, D1, Chan Hung-cheong and him.  Chan had come to the restaurant later.  PW1 did not know him. 

27.  They were told to memorise the particulars on the ticket.  Each of the three was given a case and they were told to go to separate Cathay desks to collect their boarding cards.  This took place between 12 noon and 1 pm, also to check in their luggage.  PW1 did this at about 1.30 pm.  He returned to Ajisen Restaurant and you, D1, and Ah Cheong were already there.  All were then taken to Terminal 2 where all three handed their boarding passes to Ah Bo.  They were told to wait there.  You, D1, said nothing. 

28.  The three then left with Ah Bo, D2, the female and the plump man.  The three then remained for 1 to 2 hours.  Ah Bo returned to say the scheme had failed and he gave each of you $4,000.  Again D1 said nothing. 

29.  PW1 was then cross-examined.  He agreed that in late 2008 the work for the transportation company became less and you, D1, cancelled work on several occasions at the last minute.  He agreed he did complain to you and that he had a wife to look after who complained to him.  He agreed from the start of 2009 you, D1, had no work for him.  He agreed he did become unemployed. 

30.  As for D2, he described him as a colleague whom he rarely saw for social gatherings.  He accepted that in March D2 asked to borrow his camera to use on a visit to Canada.  He said he did not loan it to him and could not recall if they had met alone together in a restaurant in Shenzhen in 2009.  The meeting in the Shenzhen restaurant with you, D1 and D2, he agreed that you, D1, said the work was illegal and he, PW1, had a wife and family.  You, D1, did not object to him selling his passport.

31.  After looking at his statement he accepted that in his cautioned statement to Immigration Department he said you, D1, told him not to do illegal things such as selling his passport as well and this was correct.  He said he knew that you, D1, had a wife and family in Shenzhen.  In his cautioned statement he accepted, he said they met at Ajisen Restaurant but has insisted now it was Sheung Shui bus stop.  He had misremembered when giving his cautioned statement was his explanation. 

32.  He was questioned about what he said happened at the airport.  The defence case was put and he disagreed with material facts put.  He especially disagreed that it was because of grudges against you, D1, and upon finding out that your passport in your name had been used that he made up this story.

33.  The prosecution case was then closed.  In the absence of any contrary submission I ruled there was a case for you, D1, to answer.  You had your rights explained by defence counsel and elected to give evidence and called one defence witness.

34.  D1, you gave evidence.  You said that in 2008 you had been the foreman of various transportation companies but now worked in construction.  You first met PW1 in 2008 and you had paid his wages and supervised him.  You confirmed that in 2009 you had not employed him.  You agreed PW1 had complained to you in the presence of D2 about the cancellation of work and that when complaining his attitude was very bad.  This led to your relationship turning sour. 

35.  You said that in 2009 you had no contact with PW1, you never met him in a restaurant in Shenzhen in March 2009, nor did PW1 ever ask you for work.  You accepted that on 4 May 2009 you did apply for a Hong Kong passport as you were planning to attend the wedding ceremony of an ex-girlfriend in Singapore.  You believed this would be held in November, however, you did not go as your wife objected.

36.  D2, you said was your good friend through work and when you applied for the passport at Shatin he went with you.  You said you had known D2 for 8 or 9 years.  You received your passport on 19 May 2009 and again D2 went with you.  As you had to get back to Shenzhen, you gave D2 a bag of work clothes to take to your mother’s house in To Kwa Wan.  You also put your HKSAR passport into the bag.  You said that D2 saw you doing this.  You then parted.  You said that you had never heard of human smuggling.  The passport was stolen one day before you went to court at Ngau Tau Kok Police Station you were charged and came to know that D2 was in the same case.  D2 admitted he had taken away your passport the same day, that is on 19 May 2009. Before this admission, you had only come to know it was missing when Immigration Department was involved and you searched for it.  You did retrieve the bag from To Kwa Wan and after some prevarication did say that you had checked it for the passport and found it gone.  On 25 May 2009 you never went to the airport and you were never involved in people smuggling. 

37.  You were then cross-examined at length.  You confirmed that D2 admitted stealing your passport when you met with him at Ngau Tau Kok Police Station on 10 October 2011.  This was after bail procedures and at the entrance to the police station.  You agreed you did not return to the police station to make a report on the theft saying it was because you were in court the next day and planned to accuse him there.  However, you had no chance to speak.  You claimed you did speak to Immigration Department about this but they did nothing.  You said you had not been immediately suspicious of D2, you had not previously accused D2 as you thought it was lost in the move, it had been taken by transportation workers.  You accepted that you did not report it to mainland police feeling that this was pointless.  Mr Siu put the prosecution case to you but you refuted it.

38.  D2 then gave evidence as DW1.  Leung Ho-yan was then called on behalf of you, D1.  He confirmed his acquaintanceship with you and working for you up to the end of 2008.  Also that PW1 had been a colleague.  He spoke of work being cancelled and PW1 being unhappy and dissatisfied which he expressed to you, D1.  He said in March 2009 he never met up with you, D1, and PW1.  D2 agreed that you applied for a passport on 4 May 2009 and he went along with you.  D2 was involved in its collection.  D2 was then to take a bag containing the passport and work clothes to your mother’s house.  D2 said he left the clothes but not the passport.  He was then cautioned by the court but continued to admit to taking the passport.  He gave it to Chan Ka-bo as he had been asked to find two people.  If he could not find two persons to get boarding cards he could not participate.  Later, Ah Bo gave him $4,000.  This meant if he was unable to get two people he could not fly to Canada and would lose at least $19,0000.  After Chan Ka-bo asked him, he successfully found PW1 but failed to find another.  A person from the Street Sleepers Hostel where he stayed called Ah Kit did agree but D2 did not see him again and believed that he had gone to prison.  This was in April of 2009.  He said he learned that you, D1, were applying for a passport, he said he took it away and passed it to Chan Ka-bo that day, he then described what happened at the airport on 25 May. The only matters of relevance or importance was that you, D1, were not present and so did not do what PW1 alleged.

39.  Mr Siu then cross-examined for the prosecution. D2 said it was the end of April or early May that D1 mentioned that you were applying for a passport.  He agreed that he never mentioned you to Chan Ka-bo prior to 19 May when he handed over the passport.  He agreed prior to this Chan should have no knowledge of you.  D2 was referred to the electronic ticket in your name and could not say why it was issued on 28 April 2009 nor how and it was not because you were involved.  D2 agreed he had told lies to Canadian Immigration and to Hong Kong Immigration Department.  D2 said you asked him to take the passport with your clothes to your mother’s house as you planned to fly directly to Singapore to Hong Kong.  He agreed that when you went to his house, you would know that he had stolen the passport.  He said that on 10 October 2011 he admitted to you that he had stolen your passport.  This was outside the police station.  D2 said he apologised to you and was remorseful. He said up to 2011 you still remain in contact, usually by telephone, but it was less frequent.  He claimed that you had never discussed the case.  He claimed that it was only on 10 October 2011 that he knew that you were involved in the case despite reference to you in his record of interview of 29 September 2009.  The meeting in Shenzhen with PW1 was only with him. You never went to the airport on 25 May and you were never an accomplice. Defence case was then closed.

40.  Mr Siu for the prosecution and Ms Wong for defence then made final submissions.  In reaching my verdict, I took those submissions fully into account.  I turn now to the verdict.

41.  If you are to be convicted, the onus is of course on the prosecution to prove each and every essential element of the charge beyond all reasonable doubt.  The case is founded on the evidence of PW1, an alleged accomplice, and a witness giving evidence for the prosecution in the hope of obtaining a reduction of his own sentence after his plea of guilty.  The fact that your passport was used at the airport on 25 May to obtain the boarding pass for flight CX838 to Vancouver and the various weaknesses and contradictions in the defence evidence.  As I have said, PW1 had much to gain by giving evidence against you. 

42.  It is clear from the evidence that at the very least at the end of 2008 he had complained to you about working arrangements, so to some degree there was bad blood between the two of you. 

43.  We also know that there was a marked discrepancy in his evidence as to where the group met up on 25 May.  In his cautioned statement he placed it at the Ajisen Restaurant at the airport but in his evidence he said it was Sheung Shui bus stop and that Ah Bo instructed them to pay cash to avoid detection.  It was also somewhat odd that his evidence relating to the alleged meeting at the restaurant in Shenzhen was that you, D1, was advising him to avoid these illegal activities because of him being a family man when you were in exactly the same position.  Had you changed your mind, that is the question.  Also it is odd that PW1 would be going to you, D1, to seek work when by this time you were no longer associated with the transportation business and given what had previously occurred between you.

44.  Your position is crystal-clear.  You had never met up with PW1 in 2009, neither at a restaurant in Shenzhen nor at the airport on 25 May.  You are a man of clear record which is important when assessing your veracity and your propensity to commit the crime alleged.  Support for the prosecution case comes the fact that on 25 May your passport was used and it was used by someone who bore at least a resemblance to you.  However, you claimed that your passport had been stolen by D2.  You had found it missing when Immigration began to investigate you and at Ngau Tau Kok Police Station on 10 October 2011 D2 admitted he had stolen it. 

45.  Your version is fully corroborated in all material aspects by D2 who as far as I can see has no incentive nor benefit from supporting your story.  In fact his admission to the theft of the passport is contrary to his self-interest.  Even after being cautioned and the consequences of admission being explained he did not resile from that position.  These evidence in a nutshell was that there was no meeting in a restaurant in Shenzhen when you were present and PW1; on 19 May 2009 he stole your passport and passed it to Ah Bo as he wanted or needed money or at least would lose money; you never went to the airport on 25 May 2009 and you were not involved in the offence.  He confessed to you outside Ngau Tau Kok Police Station on 10 October 2011.

46.  Suspicions about D2’s veracity are raised by the fact that clearly the ticket was issued in your name on 28 April 2009.  D2 could not explain this and maintained Ah Bo would only know of you when given the passport on 19 May 2009.  However, this is merely suspicious and not conclusive.  Additionally, it did not ring true that D2 only became aware of your involvement on 10 October 2011 or that you had never discussed the matters.  That D2 lied to both Canadian Immigration and Hong Kong Immigration whilst reprehensible is in the circumstances hardly surprising and not sufficient to undermine his credibility on material points.

47.  Mr Siu himself articulated the problems prosecution has and indeed what I find to be the real position at paragraph 15(f) of his final submission when he says this:-

“You, D1 and D2, are good friends. One cannot rule out the possibility that D2 had just tried to sacrifice himself in order to exculpate you, D1.”

Indeed, I cannot rule out that possibility but that is precisely what it is, a possibility. To convict, I would have to be sure that you and D2 lied in respect of material facts and that PW1 told the truth. I cannot be sure of that. I may be suspicious but mere suspicion cannot lead to a conviction.

48. I find that your version as supported by D2 could well be the truth and that therefore you are acquitted of this charge, the charge is dismissed.