HKSAR v. KE LI XUE also known as KE LIBIN AND ANOTHER

DCCC 507/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 507 OF 2017

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REASONS FOR SENTENCE

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1.  The defendants were jointly charged for conspiracy to make a false representation to an Immigration Assistant contrary to section 42(1)(a) of the Immigration Ordinance, Cap 115 and section 159A of the Crimes Ordinance, Cap 200 and punishable under section 159C of the Crime Ordinance, Cap 200; while D2 was also charged for another conspiracy of similar nature.

2.  And D1 and D2 were further charged for 11 and 13 counts of making false representation to an immigration assistant respectively related to their application for document of identity, passport and travelling in and out Hong Kong on the strength of their respective HKID bearing false Date of Birth.

3.  The defendants pleaded guilty and admitted the facts, they were convicted accordingly.

FACTS

4.  An application for amendment of date of birth tendered by D1 in April 2011 with an explanation that she filled in her sister D2’s date of birth by mistake triggered the investigation of the present case.  On 3 July 2015, an operation was conducted to located D1 and D2 for enquiry.

5.  The true identity of D2 was O Lai Pun and she was born on 23 December 1966.  In around 1995, her deceased father O Chi Chi bought a One-way Permit for her to settle in Hong Kong.  D2 impersonated Wu Kin Fan and used the One-way Permit issued in the name of Wu Kin Fan with the date of birth as 18 September 1962 to settle in Hong Kong.  On 2 February 1995 she presented the said One-way Permit for arrival clearance in Hong Kong and settled in Hong Kong (Charge 1).

6.  On 18 March 1995 D2 falsely stated her name as Wu Kin Fan with date of birth as 18 September 1962 for her application for Document of Identity in order to follow what was stated on her One-way Permit.  A document of identity was issued to her on the same day (Charge 3).

7.  Subsequent to Charge 3, D2 changed her name back to O Lai Pun.  On 12 March 2002 D2 had falsely stated that she was born on 18 September 1962 in the application for a document of identity.  A document of identity was issued to her on the same day (Charge 4).

8.  On an unknown date between 1 January 2004 and 19 February 2004, D2 intended to sponsor her son to settle in Hong Kong but she could not use her false identity for the sponsorship and she asked D1 to assume her identity and brought her son along for settlement.  The true identity of D1 was Ke Lixue and she was born on 29 May 1959.  D1 assumed D2’s identity to apply for a One-way Permit because she was aware that she was not eligible to apply one under her true identity.  D2 arranged for D1’s settlement in Hong Kong.  D1 impersonated D2 and used the One-way Permit issued in the name of D2 and with D2’s date of birth to settle in Hong Kong.  On 19 February 2004 D1 presented the said One-way Permit for arrival clearance in Hong Kong together with D2’s son and settled in Hong Kong (Charge 2).

9.  On 25 February 2004 D1 falsely stated her name as Ke Libin with date of birth as 23 December 1966 for her application for Document of Identity because she had assumed D2’s identity for the application for One-way Permit.  A document of identity was issued to her on 5 March 2004 (Charge 5).

10.  In 2005 D1 had changed her name back to Ke Lixue by deed poll.  On 22 August 2005 she stated her date of birth as 23 December 1966 for her application for Document of Identity.  A document of identity was issued to her on 31 August 2005 (Charge 6).

11.  Further Travel Index Check showed that D1 had entered and left Hong Kong on 8 occasions on the Hong Kong Identity Card under date of birth as 23 December 1966 between 2 August 2007 and 22 October 2014 via Immigration counter (Charges 7 – 14).

12.  Further Travel Index Check showed that D2 had entered and left Hong Kong on 10 occasions on the Hong Kong Identity Card under date of birth as 18 September 1962 between 9 March 2007 and 4 March 2015 via Immigration counter (Charges 15 – 24).

13.  On 30 January 2012 D2 had falsely stated that she was born on 18 September 1962 in the application for a passport.  The application was approved on the same day (Charge 25).

14.  On 12 June 2015 D1 had falsely stated that she was born on 23 December 1966 in the application for a passport.  The application was subsequently withdrawn (Charge 26).

MITIGATION

D1

15.  The defendant aged 58 married, unemployed and lived with D2 in Hong Kong.  She helped D2 to accompany her nephew (D2’s son) to Hong Kong in 2004.  Her husband and son lived in mainland, she travelled frequently to mainland to stay with them after she settled in Hong Kong. 

16.  D1 admitted that she conspired with D2 to impersonate D2 to apply for the One-way Permit but she did not know how in detail the application was processed.  The defendant has a clear record, she indicated her plea of guilty at the earliest opportunity and was remorse for the wrong committed.

17.  It was submitted that D1 was unemployed but according to her son’s mitigation letter, D1 was the main financial support of the family and he relied on the mother’s financial assistance.  If D1 was not working in Hong Kong she must have been working in mainland.  This again hard to understand why she wanted to keep the false identity in Hong Kong after she successfully took the nephew into Hong Kong in 2004.  She could have visited her family here by visitor permit.

18.  By her own mitigation letter D1 said she acted according to her father’s arrangement in 2004.  To settle in Hong Kong was to make it convenience for her to visit her family in Hong Kong.  She did not have a residence in Hong Kong, after arrest she needed to stay in Hong Kong and not able to return her home in mainland to take care her own grandchildren.  She felt sorry that she caused her elderly mother to worry about her situation.  She would not re-offend again.

D2

19.  The defendant aged 50 married with two children.  She married her husband in 1992 and gave birth to the elder son in 1994, the nephew concerned in this case.  After she settled in 1995 she changed her name back to O Lai Pun and gave birth to the younger son in October 1995.  She used to work as a security guard and resigned because of the present offence.

20.  D2 admitted that she conspired with her deceased father to impersonate another person to gain entry and settlement in Hong Kong and further conspired with D1 to get D1 impersonated her to apply for the One-way Permit together with her son but she did not know how in detail D1’s application was processed.  The defendant has a clear record, she indicated her plea of guilty at the earliest opportunity and was remorse for the wrong committed.

21.  By her own mitigation letter, D2 said to come by mean of false representation was very common back in 1990s.  After settlement in Hong Kong she got herself gainfully employed.  She had been co-operated with the Immigration Department.  Her husband deserted the family 6 years ago and she was the main income earner of the family since then.  Her remand would cause grave financial pressure to the sons.

22.  Family members also wrote mitigation letters for the defendants to show their support and urged the court for leniency and not to deport the defendants back to mainland. Deportation is a separate matter; I am here only to consider the sentence of the defendants in the present case.

23.  The family in mainland described the matter as “a problem with identification document”, it was not really so, it was a conspiracy to impersonate another person to defraud Immigration officer to gain entry and obtain permission to remain in Hong Kong.

24.  It was easier to understand the first conspiracy back in 1995 but hard to understand the necessity of the second conspiracy.  Husband of D2 was a Hong Kong resident, he could have applied One-way Permit for the elder son on ground of family reunion.  Further if D1 were to work and live in mainland with her family as she alleged, D1 could have returned to mainland and lived by her true identity after she accompanied the boy to Hong Kong.

25.  Mr Chan representing the defendants submitted that he also failed to obtain clear instruction as to why and how the defendants able to process the application related to D1.  This showed the second conspiracy involved people other than the two defendants.  D1 by her mitigation letter said it was arranged by her deceased father.  It is noted, however, at time of the conspiracy(s), both defendants were married and mature adults. 

SENTENCE

26.  The prosecution confirmed this is the first case where defendant conspired with others to impersonate another person to gain entry and settled in Hong Kong by using One-way Permit issued in another person name and with another person’s personal particulars.  In gist the defendants of the present case gained entry and obtained permission to remain in Hong Kong by fraud, namely an illegal mean.

27.  By section 42(4) of the Immigration Ordinance, the maximum sentence of an offence under this section upon conviction on indictment being a fine of $150,000 and imprisonment for 14 years.  Whereas by contrast to section 38(1) of the Ordinance, the maximum sentence for remaining in Hong Kong illegally is a fine of $25,000 and imprisonment for 3 years.  For long mainland residents who entered Hong Kong and remained here illegally was sentenced to 15 months’ imprisonment upon their own plea for their first conviction of the offence and expected to receive heavier sentence upon subsequent similar convictions.

28.  The line of cases of mainland residents gained entry and obtained permission to remain in Hong Kong via bogus marriage is example of another illegal mean to gained entry and obtained permission to settle in Hong Kong.  In HKSAR v Kong Man Lun, Leslie HCMA731/2009 the appellant entered into two bogus marriages for monetary rewards and provided documents necessary to “the wives” to apply for their respective “Relative visit” exit endorsement facilitating “the wives” to come to Hong Kong.  The appellant pleaded guilty to 2 charges of conspiracy to defraud and was sentenced to 12 months’ imprisonment for each charge, partly concurrent, making a total of 16 months’ imprisonment.  The appellant court after considering a number of authorities confirmed the starting point of 18 months was not wrong in principle but allowed reduction for mitigation not known to the sentencing magistrate.

29.  In 香港特别行政區 訴 陳雄浩 HCMA 523/2012 the appellant entered into three bogus marriages for monetary rewards and provided documents necessary to “the wives” to apply for their respective “Relative visit” exit endorsement facilitating “the wives” to come to Hong Kong.  The appellant pleaded guilty to 3 charges of conspiracy to defraud and was sentenced to 12 months’ imprisonment for each charge, partly concurrent, making a total of 18 months’ imprisonment.  The appellant court after considering a number of authorities confirmed the starting point of 18 months and the overall sentence.

30.  In HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, a Filipino domestic helper used a false passport to enter Hong Kong and subsequently used the same false passport to apply for an extension of stay.  She pleaded guilty to two offences of making false representation to an immigration officer.  Deputy Judge McMahon (as he then was) held that 12 months’ imprisonment for each offence was appropriate. 

31.  In a case of family reunion, HKSAR v Huang Dehui HCMA436/2009, the appellant pleaded guilty to an offence of conspiracy to defraud for conspired with others to defraud the Immigration Department by dishonestly making a false representation that she and her husband were the natural parents of her niece who the couples had taken as their own child since the birth of the girl for the purpose of obtaining a Certificate of Entitlement for the said girl.  The sentence was reduced on appeal from 12 months to 9 months upon the particular circumstances of the case.

32.  There were also cases about making false representation to gain entry or extension of stay.  In HKSAR v Kamissoko Mahamadou HCMA714/2008, the appellant pleaded guilty to one charge of using a false travel document and one charge of making a false representation to an Immigration officer and was sentenced to 8 months’ imprisonment on each charge to be run concurrent.  The appellant presented his Malian passport together with an expired Malian passport, each of which bore the same false date of birth to the Immigration officer upon arrival from Macau to gain entry as a visitor.  He had entered Hong Kong with false passport more than 20 times between June 2003 and his arrest in 2008.  The appeal court considered the sentence can be regarded as lenient and confirmed it.

33.  In the case of Kamissoko Mahamadou the magistrate referred to The Queen v Wang Ju Wen [1989] 2 HKLR 26, in which the defendant pleaded guilty to possession and use of a false passport was sentenced to 18 months’ imprisonment.  That case involved a businessman using 2 false passports on 16 occasions to facilitate his business travel.

34.  Though the ultimate motive of the defendants was to gain family reunion in the case of D2 or to visit family in Hong Kong as claimed by D1 in her mitigation letter, yet they chose to by-pass the legal application which was available to them.  I was told this was the first case of this nature, but D2 said in her mitigation letter that this kind of fraudulent mean was common in the 1990s, if D2’s observation was right, this showed cases of this nature were difficult to detect.  With the first conspiracy worked well, the sisters perpetrated the second conspiracy in 2004.  It took the Immigration Department 4 years to investigate this case before the defendants were invited for enquiry.  Clear message must be sent to the public that the court will not condone offences of this nature.

35.  According to the facts admitted monetary reward had been offered to buy the One-way Permit of Wu in around 1995, that factor gives rise to the similarity with conspiracy to enter bogus marriage for monetary rewards.  As to the second conspiracy in 2004, though both defendants were not able to account in details the process of the application of the said One-way Permit, it must have been obtained by fraud.  The second conspiracy enabled D1 who was not eligible for One-way Permit to gain entry and settle in Hong Kong during the last 10 years.  For each of the conspiracy, bearing in mind that the defendants were each of clear record, I consider the appropriate starting point to be one of 18 months’ imprisonment. 

36.  Since then the defendants continued to impersonate another person and made false representations to Immigration Officer in applying Document of Identity and passport, and when they went through Immigration clearance.  For the consequential offences of false representation, I consider the appropriate starting point to be one of 12 months’ imprisonment.  To further her stay in Hong Kong, D1 has impersonated another person over 10 years from 2004 to 2015, while D2 has impersonated another person over 20 years from 1995 to 2015.  The overall culpability in case of D1 warrants a starting point of 30 months while the overall culpability in case of D2 warrants a starting point of 39 months.

37.  The defendants indicated their plea of guilty in the earliest opportunity and entitled to 1/3 discount.  Further, as mentioned above offence of this nature was difficult to detect and I consider the remorse and co-operating altitude of the defendants warrant a higher discount in sentence, and I would allow them up to 45% discount respectively.  However, I do not consider there to be any mitigating factors that call for further reduction.  Taking into account of the totality principle, the sentence of the defendants will run partly concurrent and partly consecutive making a total of 16 months in the case of D1 and 21 months in the case of D2.

ORDER

D1

D2