HKSAR v. CHAN HUNG CHEONG AND ANOTHER

DCCC46/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 46 OF 2011

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Reasons for Sentence

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1.  D1 and D2 pleaded guilty to their respective charges of conspiracy 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.  This court passed sentence on D1 on 9 May 2011, while at the same time pending certain outstanding matters in relation to D2. Today I am told that everything is now settled and D2 is prepared to receive his sentence. 

Prosecution Case

3.  On 25 May 2009, two Mainlanders were stopped at the boarding gate of CX838, they both produced forged Hong Kong passports for the Airport Immigration for inspection:

(1) Wang Wenman (Wang)’s forged passport was in D1’s name.

(2) Chen Yong (Chen)’s forged passport was in D2’s name.

4.  Cathy Pacific’s check-in records showed that D1 and D2 had used their Hong Kong passports to check in.  Therefore, D1 and D2 were suspected to have checked in and transferred their boarding passes to Wang and Chen. 

5.  D2 was arrested at his home on 24 June 2009. Under caution, D2 admitted that:

(1) In February 2009, D2 was introduced to Ah Bo as he was looking for a job.

(2) Ah Bo offered to pay D2 for procuring a boarding pass and transferring the same to him. D2 accepted the offer.

(3) In April 2009, D2 gave his personal particulars including his name, passport number, date of birth and other particulars to Ah Bo to make booking for the air ticket.

(4) On 25 May 2009, D2 met Ah Bo, D1 and another person at the airport. Ah Bo provided air tickets to D2 for checking in and to obtain a boarding pass for CX838. D2 handed the boarding pass to Ah Bo and he received $4,000 from him.

(5) D2 knew a person called Yang would travel to Vancouver on that day.

(6) D2 was aware that the boarding pass would be transferred to another person for boarding the flight CX838 on 25 May 2009.

Mitigation

6.  D2 has a clear record.  He is 35 and married.  He has a 6-year-old daughter.  In April 2011, his wife gave birth to a baby girl. His wife, at the same time, received a one-way permit to come to Hong Kong.  His wife also suffered from postnatal depression and D2’s father is also in poor health.  D2 was unemployed due to injury at work.  The family is not entitled to any public assistance at the time of the offence.

7.  There are a number of letters to support the defendant in mitigation.  It was due to financial hardship that D2 committed the present offence.  This matter has caused him great anxiety of more than 2½ years since his arrest in June 2009. 

8.  In respect of the two Mainlanders, Wang and Chen, each of them was sentenced to 10 months’ imprisonment for the two offences of:-

(1) possession of forged document,

(2) false representation to the Immigration Officer.

Sentence

9.  I have set out the reasons for sentencing D1 and I would not repeat myself here again.

10.  I said before there was no doubt in my mind that D2 had committed a very serious offence.  When he was approached by Ah Bo, he knew full well it was a scheme and he knew what his role would be in the scheme.  He knew that his boarding pass would be passed to another person to board the flight CX838. 

11.  On the other hand, all the details in the air ticket belonged to D2, not the other person who eventually boarded the flight. D2 would have known for one reason or the other that the other party must have certain kind of problem to check in the flight, otherwise that person would have checked in himself.  At least, on the face of it, that person’s identity was not disclosed to the airline.  It all goes to show that each one of them in the scheme had a designated role to play in order to assist the other person to board the flight CX838 to Vancouver and smuggled him into Canada if the scheme was successful.      

12.  The purpose of obtaining the boarding pass was to fly to another country.  It cannot be denied that there is an international element in the scheme which involved sophisticated planning and arrangement. 

13.  In passing sentence, I have considered a number of cases as mentioned in D1’s sentence.  Again, I will not repeat it here. 

14.  I also note from counsel’s mitigation that D2’s wife had suffered postnatal depression and further depression as a result of this case, but it has always been said that family circumstances cannot be considered as a mitigating factor as the defendant should have known his family would suffer hardship when he was sentenced to a term of imprisonment.  

15.  In conclusion, having considered D2’s guilty plea, his clear record, the role of D2 in this scheme, all the mitigating factors including all the special circumstances, I adopt a starting point of 30 months and reduce it to 18 months to reflect his guilty plea. 

16.  In respect of the mitigating factor of delay,:-

6/2009	D2 was arrested
2/2011	D2 was brought to court
5/2011	D2 plead guilty
2/2012	Sentence

The prosecution said that there were substantial investigations carried on but accepted that D2 was not told of the purpose of the delay. On the other hand, Wang and Chen were quickly brought to court in May 2009 and each received a sentence of 10 months for two charges. Between May 2011 to February 2012 there is another nine months for other matters.

17.  In these special circumstances, I further reduce two months.  It arrives at 16 months for D2’s sentence.