R. v. CHU MAN SANG

IN THE COURT OF APPEAL

1996, No. 6
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against the sentence of 12 months' imprisonment imposed upon him by Beeson DJ when he pleaded guilty to a conspiracy to defraud.

2. At the time when the offence was committed the applicant was a Captain at the Hong Kong Cricket Club. The object of the conspiracy was to present false or forged applications to the Immigration Department so as to enable persons in the Philippines to gain entry to Hong Kong with a visa which would permit them to work in Hong Kong or to extend their visas entitling them to stay here.

3. The 1st Defendant in the proceedings below was the proprietor of an agency which arranged for contracts of employment for Filipinas and undertook the necessary procedures with the Immigration Department. The idea behind the present conspiracy was that bogus employers would provide their personal particulars and the agency would falsely represent to the Director of Immigration that these employers wished to engage the services of the Filipino person referred to in the papers. On the strength of these representations the Director would process the application and the "employee" would then receive permission to come to Hong Kong and work. They would not work for the employer referred to but would be free to obtain any employment which may be available to them.

4. The role of the applicant was to solicit persons to act as bogus prospective employers.

5. What is clear from the agreed facts is that quite substantial payments were made by the prospective employees. The applicant received payments for his participation in the conspiracy and he admitted that his reason for assuming the role he did was greed.

6. What is also clear from the agreed facts is that a conspiracy of this nature makes a mockery of the enforcement of the Director of Immigration's policy concerning the importation of foreign workers and that this is seriously detrimental to the interests of the community at large.

7. Mr Cosgrove for the applicant contends that a starting point of 18 months' imprisonment was manifestly excessive in the circumstances of this case. He places reliance upon the case of R. v. Durup Crim App 194/86 (unreported) which was in many respects similar to the present case. There were 27 counts in that case and the Court of Appeal reduced the sentence to one year imprisonment.

8. We do not find this case to be of any assistance, save that it was accepted that 3 years' imprisonment was an appropriate starting point. Each case is dependent on its own particular facts. The learned judge adopted 18 months as being the appropriate starting point and then gave the applicant credit for his guilty plea. We do not think that the judge can be faulted in adopting this starting point.

9. A final point which was made by Mr Cosgrove was that the applicant had assisted the Immigration Department with its on going investigation including an offer to give evidence. This has resulted in other persons pleading guilty to charges against them. This situation is confirmed by Mr McWalters.

10. We consider that while the application itself is without merit we can give the applicant credit for the assistance he has given to the Immigration Department. We therefore allow the application and treating it as the appeal reduce the sentence by three months. The application is successful to this extent.