HKSAR v. CHENG HING KEUNG

HCMA462/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.462 OF 2011

(ON APPEAL FROM STCC 3500 OF 2010)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted after trial of two charges of ‘Conspiracy to defraud’, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200. For these offences he was sentenced to two 18-month terms to be served partly concurrently and partly consecutively thus giving rise to a total of 24 months’ imprisonment. He appeals against this sentence.

2.  This case involves two bogus marriages.  They came to light when the Immigration Department interviewed the appellant on 29 January and 16 March 2010. Under caution, the appellant made full admissions.  These records of interview were ruled voluntary, admitted into evidence and relied on completely by the trial magistrate.

3.  The proved facts as summarized by the magistrate in his reasons for sentence were as follows :

“4. The Appellant admitted that he had married twice and both of these two marriages were bogus marriages. The first bogus marriage he contracted with was a Hainan woman called Feng Zhenyan (hereafter referred to ‘Feng’) in 2003, and the second bogus marriage he contracted with was a Guangdong woman called Li Sulan (hereafter referred to ‘Li’) in 2005.

5. The Appellant admitted that he contracted bogus marriage with Feng and Li so as to help them coming to Hong Kong and the Appellant would be rewarded for what he had done for Feng and Li.

6. In mid-2003, a middleman called Ah Chi offered the Appellant to contract a bogus marriage in return of monetary rewards of HK$50,000.00. The Appellant accepted the offer, and under the instruction of Ah Chi, the Appellant applied for a Certificate of Absence of Marriage Record from the Immigration Department.

7. After getting the certificate, the Appellant went to a law firm in Hong Kong to sign the necessary documents. On the same day afternoon, the Appellant went to Hainan and eventually the Appellant went to the Civil Affairs Bureau to contract a bogus marriage with Feng on 23^rd September 2003.

8. After the marriage, Feng took away the marriage certificate. The Appellant gave a copy of his Hong Kong Identity Card and Home Visit Permit to Feng as well as his telephone numbers so as to facilitate Feng to apply relevant documents to come to Hong Kong.

9. On the wedding night, Ah Chi gave HK$3,500.00 to the Appellant. Ah Chi told the Appellant that he will pay the remaining balance after Feng’s application for settlement in Hong Kong be granted.

10. In late 2004, under the introduction of the Appellant’s cousins Cheng Oi Ha and Cheng Mei Ha, the Appellant aquainted to another middleman Ah Chan. Ah Chan offered the Appellant to contract another bogus marriage with Li so as to facilitate Li to enter and settle in Hong Kong for monetary rewards. The Appellant accepted the offer.

11. In December 2004, Ah Chan introduced Li to the Appellant in Sheung Shui. A few days later, the Appellant, Ah Chan and Li attended Shatin Marriage Registry for filing marriage notice. The Appellant contracted a marriage with Li on 13^th February 2005.

12. After the marriage, Li kept the marriage certificate. The Appellant gave a copy of his Hong Kong Identity Card, Home Visit Permit as well as his address and telephone numbers to Li through Ah Chan. The Appellant was given HK$2,000.00 as rewards.

13. A few months later, under the instruction of and accompanied by Ah Chan, the Appellant went to the Mainland and attended Public Security Bureau to apply for the One-way Exit Permit for Li to settle in Hong Kong. Ah Chan paid an additional RMB2,000.00 to the Appellant as rewards.

14.       After the Appellant was found guilty, the Appellant submitted the following for mitigation.  I was told that the Appellant is now 51 years old, and he had no assests.  His mother is in her 80’s and the Appellant had to take care of her because she was suffering from cervical cancer.  The Appellant had a clear record, I also obtained a background report from the Appellant before I passed the sentence.”

4.  In passing sentence, the magistrate indicated that he was guided by case law in respect of quantum (18-month starting point), that nothing in the appellant’s background and/or mitigation amounted to any real cause for discount (clear record with aged and cancer-ridden mother to support) and that he had taken the totality principle into consideration (in face of two distinct and separate offences).

5.  I cannot fault with any of the above. 

6.  On the contrary, all the appellant does in my presence is to say that his sentence is too severe, and that other people in the same situation have been given lighter sentences.

7.  The appeal lacks merit and is dismissed.