HKSAR v. CHONG SHUE WENG, DEREK AND OTHERS

HCMA235/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 235 OF 2009

(ON APPEAL FROM STCC 7622 OF 2008)

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J U D G M E N T

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1. All three appellants appeal against their convictions in respect of the single offence of conspiracy to defraud, contrary to common law.  The 1^st and 2^nd appellants seek leave to withdraw their abandonment of their appeals against sentence, which respective Notices of Abandonment were filed with the Clerk of Court’s Office of the High Court on 27 November 2009.  The 1^st and 2^nd appellants were sentenced to eight months’ imprisonment, whereas the 3^rd appellant was sentenced to five months’ imprisonment.

THE CHARGE

2. The charge alleged that the three appellants conspired together and with Ms Tam Shuk Fan and Leslie Shum Kit Ping to defraud the Hong Kong Immigration Department for the purpose of obtaining a dependent visa for the 1^st appellant by dishonestly arranging a bogus marriage between Ms Tam and the 1^st appellant to facilitate the 1^st appellant “to come and settle in Hong Kong on false pretence and representation made to the Immigration Department” that the 1^st appellant “would stay in Hong Kong for re-union with” Ms Tam.

THE PROSECUTION CASE

3. Ms Tam and Leslie Shum testified on behalf of the prosecution.  Leslie Shum testified that at the request of the 3^rd appellant they had met at the latter’s business premises, Prince House, which he described as a gay sauna.  There, in the presence of the 3^rd appellant, the 2^nd appellant had told him that his lover was Malaysian and that he wished to arrange for him to come and stay in Hong Kong.  The 2^nd appellant asked him if he was able to locate an unmarried woman, aged about 24 to 26 years, who was prepared to enter a bogus marriage with his lover, indicating that he was prepared to pay $25,000 as a reward.  Leslie Shum testified that he reached an agreement with Ms Tam to enter into that bogus marriage on the payment of $20,000.  In a telephone conversation initiated by the 3^rd appellant in which he enquired about the progress of the search for a woman, Leslie Shum informed the former of that arrangement.  In consequence, he was present at a meeting which was held over tea between the three appellants and Ms Tam.  Ms Tam said that was the first time that she had met the 1^st appellant.  Discussions were held about the arrangements for the marriage ceremony.  Leslie Shum testified that this meeting was one or two months before the marriage ceremony took place.

4. On 4 September 2006, Ms Tam married the 1^st appellant at a ceremony attended by the 3^rd appellant as a witness.  At a lunch held after the ceremony Leslie Shum gave Ms Tam $10,000.  Later, she received the balance of the monies due to her under the arrangement.  Ms Tam said that she never had any intention of living with the 1^st appellant.  She understood that the purpose of their marriage was to enable the 1^st appellant to stay in Hong Kong.  For her part, several days after the marriage ceremony she went to the Immigration Tower, where she signed documents referring to their married status that would enable the 1^st appellant to stay in Hong Kong.

5. It was an admitted fact that on 6 September 2006 the 1^st appellant filed a visa entry permit application, as a dependent with Ms Tam named as his sponsor.  That form states on its face that an application for “Residence/dependent” required the submission of three other stipulated forms.  They were a “Sponsor’s certificate”, a “Statement of Applicant’s and Sponsor’s family background” and a “Declaration of applicant”.  Those documents, dated 6 September 2006, were reviewed by the immigration officer who processed the application.  Documents dated 29 September and 3 October 2006, together with a bundle of photographs, were also reviewed in the same process by the officer.  The letter dated 29 September 2006 purported to be from the 2^nd appellant and confirmed his offer of accommodation in his home to the 1^st appellant and Ms Tam.  In the 1^st appellant’s letter to the Immigration Department dated 3 October 2006 he provided further information in support of his application for a visa to live in Hong Kong as a dependent.  He asserted that he had met Ms Tam in 2004 and dated her subsequently.  Of their plans after marriage, he asserted : “We will set up our family and plan to live permanently here.”  It was an admitted fact that on 26 October 2006, the Immigration Department granted the 1^st appellant an “entry dependent visa” for a period of 12 months. 

6. It was an admitted fact that on 15 October 2007, the 1^st appellant applied to the Immigration Department for an extension of stay, again naming Ms Tam as his sponsor.  The immigration officer who processed that application reviewed an “Application for Extension of Stay” in the name of the 1^st appellant, a declaration by both the 1^st appellant and Ms Tam, in which the latter asserted that there had been no change in their matrimonial relationship, and a declaration by Ms Tam that she had been absent from Hong Kong no less than three months in the past 12 months.   The application form for an extension of stay stated that 1^st appellant’s purpose for making the request was “To live with wife in Hong Kong.”

DEFENCE CASE

7. None of the appellants gave or called evidence at the trial.  There was no dispute that the marriage between the 1^st appellant and Ms Tam was valid in law.  Indeed, at the time of her testimony Ms Tam said that the marriage was still in existence.  Accordingly, it was submitted that a representation adverting to the fact of that marriage was not itself false.  Issue was taken on behalf of the respective appellants as to whether the evidence established the conspiracy alleged against a particular appellant.

8. Furthermore, it was submitted that Ms Tam and Leslie Shum were ‘tainted witnesses’ whose evidence had to be approached with caution.  Inconsistencies between the accounts they gave respectively and internal inconsistencies between previous out-of-court statements and their testimony were pointed to as supporting the submission that their evidence should be rejected.  For example, Ms Tam and Leslie Shum gave different accounts as to when the second payment of money to Ms Tam had been made.  Ms Tam said the second payment had been made by Leslie Shum in $1,000 notes at her office two or three days after the marriage ceremony.  By contrast, Leslie Shum testified that payment had been made at Ms Tam’s place of work by twenty $500 notes some six months after the marriage ceremony.  Whilst Leslie Shum testified that he had met the 2^nd appellant after the 3^rd appellant had arranged for him to visit the Prince House sauna, at which meeting the 2^nd appellant had asked him to find an unmarried woman willing to marry his lover, he accepted that he had made no mention of that meeting in his written statement made under caution of 14 March 2008.

REASONS FOR VERDICT

9. The magistrate stated that he approached the evidence of Ms Tam and Leslie Shum with caution.  He noted as a “substantial criticism” the fact that, although Leslie Shum had admitted a role in the arrangements for the marriage between Ms Tam and the 1^st appellant, he made no mention in his record of interview under caution of the meeting with the 2^nd appellant in the Prince House sauna prior to the marriage.  He first made mention of that only after he had agreed to assist the prosecution.  Also, he noted that Leslie Shum had not mentioned until his last witness statement the suggestion made by the 3^rd appellant that he should keep the difference of $5,000 between the amount given to him by the 2^nd appellant, namely $25,000, and the $20,000 he passed on to Ms Tam.  The magistrate alluded to other matters in the evidence to which he had had specific regard in this context.

10. The magistrate said of the evidence of Ms Tam and Leslie Shum that :

“…I did note and find that the evidence of the 1^st and 2^nd prosecution witnesses did tell a similar account.  It provided, between them, a consistent and complementary account of how the 1^st prosecution witness’s marriage was arranged and the different involvement of the defendants in it.”

11. Of the nature of the account of events that they described in evidence, he said :

“…it is highly unlikely that one would fabricate the involvement of persons in a crime such as this, and that one would devise a set of facts similar to the one that confronts me today.”

In rejecting the assertion that their evidence was fabricated, the magistrate found, “It has the ring of truth to it.”

12. The magistrate addressed a number of the discrepancies and inconsistencies in their testimony that had been pointed out in submissions.  Of the discrepancy between Ms Tam and Leslie Shum as to when the second payment was made to Ms Tam the magistrate said that he did not find the difference surprising given the length of time between their testimony and the event that they described.  In result, the magistrate found :

“…the 1st and 2^nd prosecution witnesses were truthful and reliable as to the salient features of this conspiracy, and I am prepared to place reliance upon their evidence.”

13. Of the agreement that Ms Tam would marry the 1^st appellant, the magistrate found :

“The marriage was there to facilitate the 1^st defendant staying in Hong Kong to be with the 2^nd defendant who was described as his lover.  That agreement would mean that false representations, as to the nature of the 1^st prosecution witness and the 1^st defendant’s relationship, would have to be made to the Immigration authorities so that the 1^st defendant could obtain his dependant’s visa.

That arrangement had been made when the 1^st defendant had agreed at the 2^nd defendant’s behest.  This was the meeting at Prince House where the 3^rd defendant was present”

14. Of the nature of the alleged offence of conspiracy to defraud, the magistrate said :

“The offence in this case is formed when the agreement is entered into.  The things that subsequently happened provide evidence that the arrangement was entered into, and the working out of the conspiracy.”

The magistrate went on to note that the 1^st appellant’s application for a dependent visa, supported by Ms Tam as sponsor and the 2^nd appellant by way of a supporting letter were an “illustration of the working out of the agreement”.

15. Noting that the participation of each of the respective appellants in the agreement was different, the magistrate convicted the 1^st appellant of the charge having noted :

“There is a marriage which was paid for and for which there would be no cohabitation or relationship.  It was a shell.  The 1^st defendant, himself, used that marriage to make his application for a dependency of these, where clearly false representations and false pretences were made.”

16. In convicting the 2^nd appellant of the charge, the judge noted that his request of Leslie Shum to find an unmarried young woman to marry the 1^st appellant was the genesis of the conspiracy.

17. In convicting the 3^rd appellant of the charge, the judge found that he had arranged and was present at the initial meeting at the Prince House sauna between Leslie Shum and the 2^nd appellant, albeit that the 3^rd appellant remained silent.  Subsequently, he had telephoned Leslie Shum to urge him to get on with locating a suitable girl for the proposed marriage and had told them that he could keep $5,000 of the monies paid to him by the 2^nd appellant.

GROUNDS OF APPEAL AGAINST CONVICTION

The 1^st and 2^nd appellants’ grounds of appeal

18. On behalf of the 1^st and 2^nd appellants, Ms Draycott SC submitted that, notwithstanding the fact that it was the purpose of the marriage between the 1^st appellant and Ms Tam to support his application for a dependent visa, it did not follow as the magistrate had found, that :

"”… false representations as to the nature of PW1’ and D1’s relationship would have to be made to the Immigration authorities so that D1 could obtain his dependants visa.”

19. The was no dispute that Ms Tam had been paid to marry the 1^st appellant and that she and the 1^st appellant had approached the Immigration authorities to make an application for a dependent visa for the 1^st appellant in which applications the 2^nd applicant was complicit.

20. Ms Draycott pointed to the fact that there was no evidence of the information that the Immigration authorities would require in processing such an application nor the criteria to be applied.  Accordingly, she submitted it was not foreseeable that it would be necessary to make false representations, in consequence of which matter it was not permissible to determine that there was an agreement to that effect between the parties.

21. On behalf of the 2^nd appellant only, Ms Draycott submitted that there was no or no sufficient evidence upon which it could properly be determined that the 2^nd appellant agreed to the making of false representations by the 1^st appellant to the Immigration authorities in support of his dependent visa application.  Ms Draycott contended that that no false representations were made in the documentation that accompanied the visa entry permit application, dated 6 September 2006.  The 1^st appellant and Ms Tam were married.  It was only in the letter dated 3 October 2006, apparently provided in support of the application, that lies/false representations were made.  She accepted that the false representations included the assertion that the 1^st appellant had met Ms Tam in 2004, courted her subsequently and, in particular, that he and Ms Tam “will set up our family and plan to live permanently here.”

22. She invited the court to note the different dates on the documentation reviewed by the immigration officer, in particular the four documents dated 6 September 2006 and the two documents bearing dates some three to four weeks later.  She suggested that it was to be inferred that further information had been sought by the Immigration authorities and that someone had decided that it was necessary to tell lies.  However, she submitted that there was no evidence that the 2^nd appellant was even aware of the letter of 3 October 2006 let alone that he was a party to it being submitted to the Immigration authorities.

The 3rd appellant's grounds of appeal against conviction

23. On behalf of the 3^rd appellant Mr Raymond Yu submitted that the magistrate had erred in determining that the marriage between Ms Tam and Leslie Shum was “bogus”.  The marriage was valid, notwithstanding the purposes for which marriage was entered and the mutual agreement on which the marriage was to be conducted.  Further, in the absence of evidence from an immigration officer, there was no evidence that the officer would not have granted the visa had he known of the true nature of the relationship between the 1^st appellant Ms Tam and the circumstances of the marriage.  Secondly, it was contended that the magistrate erred in concluding that the 3^rd appellant was a party to the alleged conspiracy.  Thirdly, he submitted that the judge erred, having reviewed the evidence against the 3^rd appellant, in stating of that evidence that he found it, “in the absence of any explanation to be compelling evidence of the 3^rd defendant’s participation in the conspiracy.”  To do so, was to draw an impermissible adverse inference against the 3^rd appellant for not having given evidence.

THE SUBMISSIONS OF THE RESPONDENT

24. On behalf of the respondent, Mr Brooke accepted that the marriage between the 1^st appellant and Ms Tam was valid.  He drew the court’s attention to the effect of section 28 of the Marriage Ordinance, Cap. 181, namely “All marriages celebrated under this Ordinance shall be good and valid in law to all intents and purposes.”

25. Notwithstanding, the fact that the marriage of the 1^st appellant and Ms Tam was valid, Mr Brooke submitted that the evidence of Ms Tam that she had never intended to live together with the 1^st appellant “as a couple”, that she had participated in the marriage for payment of money and that she understood that the purpose of the marriage was merely to enable the 1^st appellant to apply to the Immigration authorities to stay in Hong Kong were all highly relevant factors to a consideration of the charge.

26. He submitted that the magistrate had correctly identified the nature of the allegation made by the prosecution, namely that the agreement was to “make false representations about the nature of the relationship of the 1^st defendant and (Ms Tam) created by the ceremony of marriage that they entered into” (see page 35 of the Appeal bundle).  Further, that false representations were to be made to the Immigration Department that “the defendant was, in fact, here to reunite with the 1^st prosecution witness, when clearly he was not” (see page 35 of the Appeal bundle).  He noted that the magistrate had found that to be the effect of the evidence of Ms Tam and Leslie Shum as to the agreement to which they had become parties (see pages35 and 36 of the Appeal bundle).

27. He submitted that the magistrate was correct to determine that the agreement, “would mean that false representations, as to the nature of (Ms Tam) and the 1^st defendant’s relationship, would have to be made to the Immigration authorities so that the 1st defendant could obtain his dependant’s visa” (see page 39 of the Appeal bundle).  Similarly, he submitted that the magistrate was correct in his analysis of the nature of the marriage, namely that it was “a marriage which was paid for and for which there would be no cohabitation or relationship.  It was a shell.”  Finally, the magistrate was correct to state that the offence was made out at the stage of the agreement between the conspirators, rather than at the time the representations were made to the Immigration authorities.

A CONSIDERATION OF THE SUBMISSIONS

28. There is available to the court a transcript of all of the oral evidence adduced at trial, namely the testimony of Ms Tam and Leslie Shum, together with all of the exhibits and the admitted facts.  These proceedings are by way of re-hearing on the papers.

Background

29. It was an admitted fact that the 2^nd appellant was the sponsor of the 1^st appellant’s successful application to the Immigration Department made on 13 August 2003 for an extension of stay in Hong Kong on the basis of his education at university.  In the documentation reviewed by the immigration officer processing the application, the 2^nd appellant was described as the guardian of the 1^st appellant.  On 25 August 2003 the 1^st appellant was granted an extension of stay as a student in Hong Kong for 12 months.

30. There is no issue that the magistrate was correct to determine that the purpose of the agreement by which Ms Tam married the 1^st appellant, in return for being paid $20,000, was as all the parties to the agreement were aware “to facilitate the 1st defendant staying in Hong Kong to be with the 2^nd defendant” (see page 39 of the Appeal bundle).  At issue, is whether the parties to the agreement agreed that false representations were to be made to the Immigration Department.  Equally, there is no issue that in law the marriage between Ms Tam and the 1^st appellant was valid.

31. Given the undisputed evidence of Ms Tam that she never intended to live with the 1^st appellant “as a couple”, and that the purpose of her entry into the marriage for which she was paid was simply so that the 1^st appellant could “use the marriage with me to stay here”, clearly the magistrate was correct in describing the marriage as a “shell”.  Although Ms Tam and the 1^st appellant enjoyed the status of being married there was no substance to the status at all.  Although no immigration officer was called to testify on the point, there is no doubt that it was a fundamental pre-requisite of an application for the grant of a visa entry permit on the basis of the applicant being “dependent” of Ms Tam, as the sponsor, that the relationship be genuine and not merely a facade. 

32. It is to be noted that each of the four documents, dated 6 September 2004, that was submitted to the Immigration Department and processed by the immigration officer considering the 1^st appellant’s application, required the applicant and sponsor, as appropriate, to sign the document beneath the assertion that “The information given above on this page is correct and complete.”  Needless to say, and for obvious reasons, none of the four documents made any reference to the circumstances in which the marriage had been entered into by Ms Tam and 1^st appellant and the fact that it was not intended that they cohabit.  The “Sponsor’s certificate” signed by Ms Tam required her to “certify from my personal knowledge of the applicant … that I am able to strongly support the applicant is a person whom I believe”, inter alia, is suitable to be allowed into Hong Kong for the purpose stated and will abide by the law of Hong Kong and such restrictions as might be imposed on his working in Hong Kong.  On the date that Ms Tam provided that certification namely 6 September 2006, Ms Tam had almost no personal knowledge of the 1^st appellant.

33. In those circumstances, the magistrate was entirely justified in concluding that the agreement reached between the conspirators, to obtain the marriage of Ms Tam to the 1^st appellant for the purpose of the 1^st appellant advancing that relationship in an application to the Immigration Department to be permitted to stay in Hong Kong, “would mean that false representations, as to the nature of the 1^st prosecution witness and the 1^st defendant’s relationship, would have to be made to the Immigration authorities so that the 1^st defendant could obtain his dependant’s visa.”

34. The magistrate was correct to note that :

“The offence in this case is formed when the agreement is entered into.  The things that subsequently happened provide evidence that the agreement was entered into, and are the working out of the conspiracy.”

35. In that context, in examining the roles of the individual appellant at trial the magistrate was entitled to determine that not only had the 1^st appellant entered into a marriage with Ms Tam, where “no cohabitation or relationship” was ever intended, but also that he had advanced the fact of that marriage as the basis for a “dependency visa, where clearly false representations and false pretences were made”.  In the case of the 1^st appellant, the falsehood lay not only in the primary representation that he enjoyed a genuine relationship of marriage with Ms Tam, which entitled him to claim a dependency, but also the egregious misrepresentations contained in his letter of 3 October 2006.  That letter contained a tissue of lies about his supposed relationship with Ms Tam.  He lied about when they met, the length of their courtship, the fact that he had repeatedly visited Hong Kong in order to see her and, most particularly, that they intended to set up as a family in Hong Kong permanently.

36. In convicting the 2^nd appellant of the offence, the magistrate noted his role at the meeting at the Prince House sauna between Leslie Shum, the 2^nd appellant and the 3^rd appellant, namely “this conspiracy was actually proposed by the 2^nd defendant to (Leslie Shum)”.  Of that conduct of the 2^nd appellant, the magistrate said that it was, “formative in the conspiracy”.  Also, it was the evidence of Leslie Shum that the 2^nd appellant had paid him at the Prince House sauna the balance of the money that thereafter he paid to Ms Tam for participating in the marriage.  The magistrate was entitled to reach the finding that he did.

37. In convicting the 3^rd appellant of the offence, the magistrate noted that he had initiated the meeting between 2^nd appellant and Leslie Shum at which the conspiracy had been formed. Having noted that the 3^rd appellant had not said anything on that occasion he observed that subsequently he had initiated the telephone conversation with Leslie Shum in which he had enquired whether he was able to find a girl for the marriage as requested by the 2^nd appellant.  Clearly, he was acting in furtherance of the agreement.  Furthermore, he noted that it was the evidence of Leslie Shum that was the 3^rd appellant who had suggested that he could keep the extra $5,000 paid to him by the 2^nd appellant for the payment of the balance of the money due to Ms Tam.  The magistrate said that it was this evidence taken together, in the absence of any explanation, that he found to be compelling evidence of the 3^rd appellant’s participation in the conspiracy.  He was entitled to make that finding.  To do so was not to elevate the strength of the prosecution’s evidence because the 3^rd appellant had not given or called any evidence, rather it meant that in the absence of such evidence, “that may create any reasonable doubt on the inference consistent with guilt or give rise to the consideration of an inference consistent with innocence, the inference of guilt will be more readily drawn.”  [see HKSAR v Chan Chi Kwan (unreported), CACC470/2000, 13 July 2001, at paragraph 20].

CONCLUSION

38. In my judgment there is no merit in the grounds of appeal against conviction advanced on behalf of the appellants.  Accordingly I dismiss those appeals.

The 1^st and 2^nd apellant's appeals against sentence

39. The 1^st and 2^nd appellants appeared in person in making applications to the court for leave to withdraw Notices of Abandonment that had been filed on their behalf in respect of their appeals against sentence.

40. By Notices of appeal dated 27 February 2009 the 1^st and 2^nd appellants filed grounds of appeal against sentence, on the basis that sentence was too severe.  By Notices of Abandonment filed in the Clerk of Court’s Office (Appeals Registry) of the High Court dated 27 November 2009 by their solicitors the 1^st and 2^nd appellants respectively gave notice that they abandoned those appeals.  By letter, dated 30 November 2009, copied to the First Clerk, Shatin Magistrates’ Courts, a clerk acting on behalf of the Registrar in the High Court informed the solicitors of the 1st and 2^nd appellants in separate letters that, Notice of Appeal against sentence respect of the captioned appellant is on this day marked dismissed upon receiving your Notice of Abandonment filed on 27 November, 2009”.

41. Although Ms Draycott did not appear on behalf of the 1^st and 2^nd appellants in their respective applications for leave to withdraw their Notices of Abandonment of their appeals against sentence, quite properly she drew to the attention of the court the provisions of section 117 of the Magistrates Ordinance, Cap. 227, which provides that an appellant may abandon his appeal :

“…by giving notice in writing to the clerk of the magistrate against whose decision the appeal is brought, and, if he gives such notice, the clerk shall forthwith give notice of the abandonment to the respondent and to the Registrar.”

Here, she observed the process had been reversed.  At issue, was whether the appellant had given effective notice of their abandonment of their appeals against sentence.

42. I am satisfied that the fact of the abandonment of their appeals against sentence by each of the 1^st and 2^nd appellants was communicated to the Magistracy and to the clerk of the magistrate, albeit through the Registrar and not directly.  The Notices of Abandonment of the appeals against sentence were effective and those appeals properly dismissed.

43. There is nothing in the affidavits of either the 1^st or 2^nd appellant that in any way suggests that, “the abandonment was not the result of a deliberate and informed decision, meaning that the applicant's mind did not go with the act of abandonment” (see the judgment of the Court of Appeal delivered by Ma CJHC in HKSAR v Law Kam Fai & Another [2006] HKLRD 879 at 893).

CONCLUSION

44. Accordingly, I refuse the applications made by the 1^st and 2^nd appellant that they be given leave to withdraw their respective Notices ofAbandonment in respect of their respective appeals against sentence. 

THE 3^RD APPELLANT’S APPEAL AGAINST SENTENCE.

45. The 3rd appellant appears in person in respect of his appeal against sentence.  He advances the simple submission that the sentence of five months imprisonment is "too severe".  In imposing sentence the magistrate noted that the 3rd appellant regretted his involvement in the conspiracy as having been foolish.  In imposing sentence, the magistrate said:

" For an offence of this nature, a custodial sentence is the appropriate disposal.  It reflects the seriousness of the conspiracy entered into, the community's desire to protect the immigration regime, the necessity that public officers carry out their duties with the correct information before them".

46. The magistrate stated that he took a starting point for sentence for the 3rd appellant of six months imprisonment.  That was a lower starting point than that taken for the 1^st and 2^nd appellants, namely eight months imprisonment.  Acknowledging the positive good character of the 3rd appellant in respect of his charitable works, he reduced the sentence identified as the appropriate starting point by one month and imposed a sentence of five months imprisonment.

47. In my judgment the magistrate’s approach to the imposition of sentence was entirely appropriate.  Accordingly, I dismiss the 3rd appellant's appeal against sentence.

48. In consequence the three appellants must serve the sentences of imprisonment imposed upon them by the magistrate.