HKSAR v. KWOK KAI WAI (aka GUO SUQIN)

DCCC 326/2022

[2023] HKDC 853

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 326 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is charged with eight counts of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Chapter 200. She pleaded guilty to Charges 1 and 5 to 8, five charges in total. The remaining three charges, namely Charges 2 to 4 were ordered to be left on court file and not to be proceeded with unless with the leave of the court.

2.  This is a case of bogus marriages. The facts are not uncommon as fully set out in the amended Summary of Facts dated 19 June 2023 as admitted by the defendant. Put it very simply, on five different occasions, the defendant, by placing online advertisements to get in touch with local residents, obtained their agreement by offering payment to them to participate in a bogus marriage scheme involving mainlanders to facilitate the latter to defraud the Director of Immigration with a view to obtaining legitimate entry into Hong Kong.

3.  The defendant was born in 1970 and is now 53 years old. She was educated up to primary level. She is a divorcee, a housewife with three adult children. She has no previous criminal record in Hong Kong.

Mitigation

4.  Mr Pannu for the defence submitted a written mitigation on behalf of the defendant. The defence submitted that the five charges here have some salient similarities. In brief, it is submitted that all local participants voluntarily participated in the scheme for financial gains. None were cheated and in fact paid as agreed.

5.  A local law firm in Mong Kok facilitated part of the scheme. The China side of the spouses were mainly from Haifeng, China. The payments for the full scheme in each case ranged from $70,000 to $80,000 as a reward for the Hong Kong resident. The defendant’s role was no more than connecting the two parties and facilitating the travels and documentation for the scheme.

6.  The defendant was certainly not acting alone but there can be no denial that her role is pivotal. None of the schemes were eventually successful and no harm had been eventually done to Hong Kong as a collective society by way of burden on the local social services for new immigrants or employment. There is no evidence that anyone has successfully secured residence in Hong Kong.

7.  Regarding the defendant’s background, it is submitted that she was born in Shanwei, China and is currently 53 years old. She has a clear record. She is a Hong Kong resident with two sons and a daughter aged between 26 to 30 years old, all decent workers with clear records.

8.  The defendant is divorced and lives with her three children. She is a housewife. Her children submitted a joint letter to mitigate on her behalf. It is submitted that the defendant got herself into this case as she was persuaded by some of her clansmen to see if she could arrange for their immigration to Hong Kong due to hardship they faced in Shanwei, China. It is said that she initially refused but later succumbed to repeated persuasion and pressure from friends and relatives.

9.  She now accepts she played a pivotal role, but it is submitted that she had not made any money from those events, as she was paid only the travelling fee and food and drinks.

10.  It is also submitted that the defendant’s children are supportive and the defendant herself had certain orthopaedic ailments on her knee, elbow and ankle. A medical report dated 17 March 2018 about her right ankle together with her blood test results were submitted.

11.  The defence submits that the sentencing norm for offences of this nature is one of a starting point of 18 months’ imprisonment after trial. Two District Court sentencing cases, namely HKSAR v Kuo Ching San, DCCC 199/2015, and HKSAR v Wong Shan, DCCC 1134/2016 were submitted.

12.  The first one involved three charges with facts similar to those of this case and the final sentence is 18 months in total after guilty pleas. The second case involved five similar charges and facts, and the final sentence is 21 months in total, also after guilty pleas.

13.  It is accepted by the defence that the only mitigation in this case is that the defendant has pleaded guilty to the charges. She has a clear record and she foolishly got involved in this scheme out of goodwill. She is remorseful and she has shown it with her pleas. It is said on her behalf that her health is not ideal and she is unlikely to reoffend. She is a first time offender at this mature age and has very supportive children who will keep an eye on her.

14.  The court is invited to adopt a similar approach as in the above two District Court cases in the current sentencing exercise in this case.

Sentence

15.  As rightly submitted by the defence, the normal sentence for a single offence of this sort is 18 months after trial. It is said as early as in 2012 in a reported magistracy appeal case, HKSAR v Chan Hung Ho [2013] 2 HKLRD 216, at paragraph 8 of the judgment, as per Barnes J, it reads:-

“There are no sentencing guidelines have been laid down for conspiracy to defraud cases involving bogus marriages. In a number of magistracy appeals concerning cases of a nature similar to that of the present case, the appellate court held that it was appropriate to use 18 months as the starting point in a case of a conviction after trial.”

16.  The same sentencing approach was endorsed by at least two other learned judges in magistracy appeals, in香港特別行政區 訴 曾冰清, HCMA 642/2014, and a more recent one in HKSAR v Lo Ka Fung and Another, HCMA 350/2018.

17.  I do not see any aggravating factors in this case, nor any mitigating factors apart from the defendant’s guilty pleas. I am therefore prepared to adopt a starting point of 18 months’ imprisonment for each of the five charges here, reduce each by one-third to reflect the guilty plea, and pass a sentence of 12 months’ imprisonment for each charge.

18.  As the defendant was convicted of a total of five similar charges, that must be reflected in the final sentence, subject to the application of the totality principle. Having considered all the circumstances, I am of the view that an overall starting point for the five charges here should be one of 30 months’ imprisonment, and the final total sentence should be 20 months after plea.

19.  For Charge 1, I pass a sentence of 12 months’ imprisonment. For each of Charges 5, 6, 7, and 8, I also pass a sentence of 12 months for each charge and order 2 months of the sentence of each charge to run consecutively to the sentence of Charge 1.

20.  The total sentence is therefore 20 months’ imprisonment.