HKSAR v. KONG MAN LUNG, LESLIE

HCMA731/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 731 OF 2009

(ON APPEAL FROM STCC 4273 OF 2009)

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REASONS  FOR  JUDGMENT

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Introduction

1. On 27 July 2009, the appellant pleaded guilty to 2 charges of conspiracy to defraud, contrary to common law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong and was accordingly convicted.  On 10 August 2009, he was sentenced to 12 months’ imprisonment for each charge, in which four months of Charge 2 to run consecutive to Charge 1, making a total of 16 months’ imprisonment.  The appellant now appeals against sentence of the ground that the sentence was too severe.

The prosecution case

2. The appellant admitted under caution that he had entered into two bogus marriages, respectively with a Li Qingxiang (between 1 January 2002 and 21 November 2002), Charge 1; and a Guan Yimi Qingxiang (between 1 January 2005 and 24 November 2002), Charge 2, for monetary rewards.  He also agreed to pose as the husband of the Li and Guan upon inquired by Immigration officers and had provided documents necessary for them to apply for their respective “Relative visit” exit endorsement.  He did so for the purpose of facilitating the said Li and Guan to come to Hong Kong with the false pretence and representation made to Immigration officers that they came to visit their husband.

3. The appellant was arrested on 10 April 2009 and was charged on 8 July 2009.  He was then brought before court on 13 July 2009.  

Sentence

4. Before passing sentence, the learned magistrate had called for a background report.

5. In mitigation, defence counsel urged upon the court that the appellant was genuinely remorseful, and was willing to provide assistance to the immigration authorities.  Further, it was pointed out that the reason for the appellant to have committed the offences in question was because he was in need of money for his family.

6. The learned magistrate took a serious view of the matter, stating that the offences in question were serious and prevalent.  He considered that the proper sentence on a plea is 12 months’ imprisonment.  He further ordered four months of Charge 2 to run consecutive the first charge.

The grounds of appeal

7. The appellant acted in person in his appeal and submitted a letter for the consideration of the court.  He pointed out that he was the eldest son of the family and was responsible for looking after his younger brother.  His mother has passed away long time ago and now he father had also passed away.  He asked for a chance and stressed that he would not re-offend again.  He also submitted a letter from a charitable organization for his mitigation.

8. The respondent had cited a number of authorities supporting the starting point adopted by the magistrate and the overall sentence imposed (see香港特別行政區訴梁詠儀，HCMA550/2008, HKSAR v. Chui Man Yi, HCMA342/2007 and also HKSAR v. Lee Man Wai, CACC386/2005).

Discussion

9. Having reviewed the authorities referred, I agreed with the respondent that the starting point of 18 months was not wrong in principle or excessive.  However, I have been provided with certain material which was not available to the sentencing magistrate.  In view of this special circumstances, I consider it appropriate to give further reduction to the sentence imposed.

Result

10. I had therefore allowed the appeal and ordered that :

(1)     the 1^st and 2^nd charges would be reduced to nine months’ imprisonment each;

(2)     three months of the 2^nd charge to run consecutively to the 1^st charge; and

(3)     the final sentence is reduced to 12 months.

11. The appeal is allowed to the above extent.