HKSAR v. CHEN JINGWEI AND ANOTHER

DCCC 559/2019 &
DCCC 846/2019 &
DCCC 276/2021
(Consolidated)

[2022] HKDC 634

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 559 & 846 OF 2019 AND 276 OF 2021

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REASONS FOR VERDICT

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1.  This prosecution case is that the two defendants were involved in a syndicate which arranged “False marriages” between Hong Kong men and women and mainlanders who wished to gain entry or settlement or hospital services in Hong Kong by way of marriage.

2.  The defendants’ role in these matters were to assist prospective spouses in Hong Kong to arrange the necessary paper work in Hong Kong.  They would also travel to the mainland with the prospective spouses to assist with the weddings and paper work in the mainland.

3.  The marriages were undertaken for financial reward, which was given for a marriage to a stranger in the mainland.

4.  The evidence shows the defendants were participants in this scheme together with others unknown.

5.  In total there are 18 related conspiracy charges relating to conspiracies to defraud, obtain services by deception, to make false representations and make false statements.

6.  The 1^st defendant faces a total of 12 charges individually as well as four joint charges with the 2^nd defendant.

7.  The 2^nd defendant faces 4 joint charges with D1 and individually a single charge of conspiracy to defraud.

8.  The conduct of the offences is remarkably similar and the accounts given by the “false spouses” are very consistent.

9.  It is also a salient features of the prosecution case that the defendants were each identified by the “spouses” only by way of a photo identification.

10.  There is no dispute that the marriages took place and that the “bogus spouses” obtained the documentation and services set out in the Prosecution case.  There appears to be no adverse case.  The issue raised by the defence is that the evidence of the bogus spouses as to D1 or D2’s involvement does not reach the standard of proof beyond reasonable doubt that the bogus spouses evidence should not be relied upon to found a conviction.  This appears to be the sole issue to be determined were the bogus spouses evidence accepted then it should be capable of founding a conviction on all the charges.

11.  The factual framework of the prosecution case is as follows.

CHARGES 1-3 were dismissed as a result of submission at the close of the Prosecution Case

CHARGE 4 AGAINST D1 AND D2 JOINTLY

Conspiracy to defraud

12.  The evidence in this charge was given by PW11 Ms LAI CHING YI about her bogus marriage with a mainland male a Mr HE LIANGMING.

13.  She told the court that in late 2016 she found herself in debt and wanted money.  She read an advert on facebook to make quick money.  She initially contacted a woman called Jenny who said that reward would be HK$600 – 700,000 for contracting a bogus marriage.  They arranged to meet.  They were to meet at Langham Place Mongkok.

14.  In fact, she met a person called HUNG YEE who said the amount would be HK$100 – 200,000.  She agreed.

15.  She then conducted procedures relevant to the marriage.  Firstly, in Tsim Sha Tsui to get a “Certificate of absence of marriage”, she was accompanied by a young woman, later she was taken by another man (D1) to a law firm in Grand Plaza Mongkok where application was made to contract a marriage in the mainland.

16.  On another day she took an oath at a District Office to prove her place of birth.

17.  She was with (D1) for about 1-2 hours.  He gave her HK$3,000 cash.

18.  She also said he accompanied her to take the oath on the next day.

19.  She said she went to conduct the marriage in the mainland on 13 January 2017.  She said D2 accompanied her to the mainland by way of taxi and train she remained with D2 after the wedding.  D2 and PW11 were in each others company for about 30 hours as they stayed overnight to obtain some documents in the mainland before returning to Hong Kong.  The witness identified both defendants at a photo ID parade on 11 March 2019.  TMR (Travel Movement Records) show PW11 and D2 crossing the HK/China border at around the same time.

THE CHARGE 5 D1 AND D2 JOINTLY

Conspiracy to defraud

20.  In respect of this offence a Hong Kong resident Mr LEE YIU MING (PW15) is said to have conspired with D1 and D2 in respect of his bogus marriage to a mainland female Ms LIN HAILING.  Mr Lee’s evidence was that in November 2019 he was single and on 23 November 2017 he married LIN HAILING, it was, he said, a bogus marriage.  He like the previous witness has seen an advert on facebook offering a means to earn fast money.

21.  He initially contacted a Ms Lee and they arranged to meet in Mongkok Langham Place on 20 November.

22.  At the meeting, Ms Lee introduced the procedure.  He was told to go to Tsim Sha Tsui to obtain a “Certificate of absence of marriage”.  He was introduced to On Chai (D1) who was to assist him in going to Tsim Sha Tsui and the lawyers’ office.  A document was signed at the lawyers’ office.

23.  On Chai (D1) stayed with him until he returned to Mongkok.  D1 told him to wait for a call from Ms Lee before he would go to the mainland.

24.  He also said he needed to return to the lawyer’ office on the 22 November.  He did so with Fai Chai and D1.

25.  D1 accompanied him for about four to five hours on that occasion.  He also met Ms Lee and a fat woman D2.

26.  Eventually he and his friends with D2 took a taxi and bus to the mainland.  It took around 12 hours to get to Fujian where the wedding ceremony with LIN took place.  LIN was introduced by D2 who had accompanied them.  After the ceremony, more documents were signed, later they had lunch.

27.  The witness remained in the mainland overnight and said he met D2 again at breakfast.  D2 also gave the witness HK$10,000 after the ceremony.

28.  The ceremony was bogus the witness had never seen LIN before and never saw her again after leaving the mainland.  Although, he had been told he would receive HK$100,000, he only actually received the HK$10,000.

29.  On 11 March 2019 at a photo ID parade, D1 was identified as “On Chai” and D2 as the fat lady.

30.  Travel movement records showed D2 crossing the border on 22 November 2017 at the same time as the witness.

CHARGES 6, 15, 16 AND 17 D1 ONLY

Conspiracy to defraud

Conspiracy to obtain services by deception

Conspiracy to make a false statement

Conspiracy to make false representations

31.  These charges were evidenced by a Mr WONG KAI MAN who entered into a bogus marriage with a mainland female GAO DAN.  The remaining charges related to conspiracies to obtain hospital services for GAO DAN and her baby.

32.  The other conspiracies involved the registration of GAO’s baby on the register of Hong Kong births and false representations to obtain a re-entry permit for the baby.

33.  Mr WONG KAI MAN was PW19.

34.  Mr WONG had in fact entered into two bogus marriages, one in 2006 with a lady surnamed Wu.

35.  He later divorced this lady.

36.  The second marriage which the charges concern was contracted in 2014 again PW19 met two middlemen after replying to an advertisement.  The middlemen were ON GOR and HUNG JE.

37.  PW19 had dealt with the documents in Hong Kong when accompanied by ON GOR (D1).  They also went to a law firm in Mongkok together.

38.  The arrangement made was that he would receive HK$20,000.  HK$10,000 initially in Hong Kong.  Then HK$10,000 after GAO DAN had arranged for the delivery of her baby in Hong Kong.

39.  PW19 also related that in 2018 he had also been involved in an attempt to arrange another bogus marriage and it was during this negotiation that he initially came into contact with ON GOR (D1).

40.  When PW19 met ON GOR to arrange the marriage to GAO DAN in October 2014.  ON GOR had met him in Mongkok.  ON GOR had explained the arrangement and payment.  They had attended a law firm in Mongkok together to deal with the documentation.

41.  He also said ON GOR instructed him to go to the mainland to marry GAO DAN.  PW19 went to the mainland on 30 October in the company of another person KUEN GOR.  The marriage with GAO DAN was contracted at the end of October 2014.  At the end of November, ON GOR (D1) contacted PW19 by phone about GAO DAN’s entry into Hong Kong for childbirth.

42.  PW19 went to Shenzhen so he could enter Hong Kong with GAO DAN.

43.  The arrangement and documentation was handled by KUEN GOR.

44.  In fact, PW19 did not meet D1 ON GOR again after his return from the mainland.  He did say that D1 transferred HK$10,000 to him by way of bank transfer.

45.  On 19 February 2019, PW19 photo ID.  D1 as ON GOR.

CHARGES 7, 11, 12 AND 13 D1 ONLY

Conspiracy to defraud

Conspiracy to obtain services by deception

Conspiracy to make a false statement

Conspiracy to make false representations

46.  The evidence for these charges was given by a Mr CHOI WAI KIT (PW21). He also had contracted two bogus marriages in the mainland, the first being in 2006.  The second which concern these charged conspiracies in 2015.

47.  The witness said that he originally responded to an advertisement in the in the Oriental Daily.

48.  He initially spoke to a woman HUNG JE the remuneration was explained. There would be payments for the bogus marriage and for supporting the “wife’s” application to come to Hong Kong for birth.

49.  Four days later, a man called ON JAI (D1) approached PW21 by phone. They arranged to meet in Tsim Sha Tsui to obtain the certificate of absence of marriage record.  PW21 was paid a few hundred dollars and D1 took the document away.

50.  They next went to a law firm for further documentation.  The law firm was in Mongkok.

51.  Two days later ON JAI called him again, he told PW21 he was to fly from Shenzhen airport to find a person called AH KUEN.

52.  PW21 did as instructed and met AH KUEN at Shenzhen airport.  They flew to the marriage destination when he married LIU XIAOCHEN.  He had never seen her before the day of the marriage.

53.  The arrangements for the marriage were supervised by AH KUEN who gave PW21 HK$10,000 when the documentation was completed.

54.  PW21 returned to Hong Kong the next day later D1 called PW21 to tell him that LIU would come to Hong Kong to deliver a baby at Precious Blood Hospital.

55.  PW21 went to Shenzhen to accompany AH KUEN and LIU to cross the border. He said he had met D1 then as well but D1 did not cross the border with them.

56.  At the hospital PW21 and LIU filled out the necessary paperwork DEC P31 booking a bed after the birth of the baby, PW21 went with him to register the birth of the baby and signed the paperwork DEC P32 and P33.  PW21 lost touch with D1 after this.

57.  On 27 February 2017, PW21 identified D1 as ON JAI by means of a photo identification – see P36.

CHARGES 8 AND 14 D1 ONLY

Conspiracy to defraud [8]

Conspiracy to obtain services by deception [14]

58.  The evidence on these charges was provided by Mr CHENG WAI LUN (PW24), he conspired with D1 and others to contract a bogus marriage to a mainland female LIU CUIHUA and to obtain the services of Union Hospital for the delivery of LIU’s baby in Hong Kong.

59.  PW24 said that in 2014 he was involved in a bogus marriage with LIU.

60.  He became aware of the possibility after answering an advertisement in the Oriental Daily.

61.  He called the number and spoke to one HUNG JE.  He was told it was about a bogus marriage, an arrangement was made to meet in a café in Sham Shui Po.

62.  He met HUNG JE who was a female.  He was asked if he agreed to take part that if he did so he would receive about HK$80,000.  He would be given a portion immediately then the rest bit by bit.  Three to four days later, HUNG JE called him to meet in a restaurant in Prince Edward.

63.  He was introduced to a man AH ON (D1).  AH ON was to be responsible for the follow up matters.  He was to act on AH ON’s instructions.

64.  AH ON instructed PW24 to apply for a “Certificate of absence of marriage record” P37.  D1 also took PW24 to a lawyer in Mongkok for some documentation. Later AH ON called and they were to go to the mainland together.  They went together from Lo Wu to the mainland.  This can be seen from PW24 and D1’s travel movement records.

65.  They went to Fujian where they discussed the procedures for the bogus marriage LIU was present.

66.  After that D1 told PW24 to return to Hong Kong to await a call.  They returned together.

67.  Some eight to ten days later, D1 called PW24 to tell him to return to the mainland for the marriage ceremony.

68.  They returned to the mainland in early February.  PW24 and D1 (AH ON) travelled back to the mainland together.

69.  The marriage ceremony with LIU was conducted the day after they travelled.  D1 was present for the ceremony.

70.  He was responsible for the arrangements after the ceremony documentation and photograph taking D1 gave PW24 RMB93,000.

71.  On the day of the marriage he returned to Hong Kong.

72.  The next day D1 called PW24 to tell him he had to return to the mainland to carry out the documentation for LIU’s Tianqin Exit Endorsement.  PW24 did as requested.

73.  In early March, D1 told PW24 to accompany LIU across the border.  He did so.  They then went to the District Office to make a statutory declaration and then to make a booking at Union Hospital for a bed for delivery of LIU’s baby – see P38.  He was given RMB3,000 by LIU.  D1 called PW24 again in March so that PW24 could accompany LIU across the border for the confinement.

74.  He did as asked but LIU was denied entry.

75.  After this D1 did not call PW24 again.  In 2018, PW24 and LIU were divorced in the mainland.  There was evidence by way of TMR of D1 and PW24 crossing the HK/mainland border together.

76.  On 27 February 2019, PW24 identified D1 as AH ON in a photographic identity parade.

CHARGE 9 D1 AND D2 JOINTLY

Conspiracy to defraud

77.  The witness is concerned with the charge in respect of Mr CHAN SHUI CHUNG (PW28).

78.  This witness had also been involved in two bogus marriages.  The first was in 2011, the second in 2017.  The charge concerned the marriage in 2017.

79.  The first marriage was arranged by a work colleague.

80.  The second bogus marriage in 2017 came about as a result of the witness seeing an advertisement in the Oriental Daily news for a way to make quick money.

81.  It was arranged for him to meet a person called FONG JEI in Mongkok. FONG JEI gave instructions to PW28 to obtain documentation regarding his divorce from the earlier bogus marriage.  After this was obtained FONG JEI instructed PW28 to obtain a “Certificate of absence of marriage record”.

82.  FONG JEI contacted ON JAI (D1).  D1 took PW28 to Tsim Sha Tsui to get the certificate from the Immigration Department.  Thereafter, they went together to a law firm in Mongkok to conduct further procedures in relations to the bogus marriage.

83.  PW28 said ON JAI (D1) was a mainlander.

84.  PW28 gave ON JAI the Certificate of absence of marriage.  ON JAI (D1) payed for the certificate one week after this.  PW28 was called to return to the mainland.

85.  It was arranged that PW28 would go to Fujian for the marriage.  He went with WAN JIE (D2).  They met at Lok Ma Chau to cross the border.  D2 and PW28 crossed the border at the same time.

86.  They took the high speedrail together to Fujian.

87.  They went to the CAB to conduct the marriage.  The marriage was to CHEN QIUYING.

88.  After the marriage they went to the public security bureau to apply for the Tianquin Endorsement.  D2 arranged for PW28 to do this.

89.  PW28 was given RMB3,000 as a reward by D2.

90.  WAN JEI (D2) took PW28 to a place to stay for the night.

91.  The next day PW28 returned to Hong Kong.

92.  PW28 only received RMB3,000.

93.  The balance was supposed to be paid when CHEN came to the mainland on a one-way permit.

94.  In a photo ID parade held on 25 March 2019.  PW28 identified D1 as being ON JAI and D2 as being WAN JEI.

95.  Furthermore, Travel Movement Records showed PW28 crossing the border at Lok Ma Chau together with D2.

CHARGE 10 AGAINST D1 AND D2

Conspiracy to defraud

96.  In this charge, the witness Mr YEUNG WAI (PW32) contracted a bogus marriage with a mainland female Ms YU YAMING.

97.  In order to do so he is said to have conspired with D1 and D2.

98.  PW32 originally saw a post on facebook about making quick money.  He contacted one HUNG JE.  He met her at MOS Burger.  HUNG JE told PW32 that the job was to contract a bogus marriage and he would receiveHK$50,000 when it was done.

99.  HUNG JE called a male called ON JAI (D1).

100.  HUNG JE told ON JAI (D1) to accompany PW32 to go to Tsim Sha Tsui to obtain a “Certificate of absence of marriage record” ON JAI (D1) gave PW32 some money to obtain the certificate.  PW32 obtained the certificate some two days later collecting it himself.  PW32 then went on to meet at Langham Place Mongkok.

101.  HUNG JE to whom he gave the certificate.  PW32 was then taken to conduct procedures at a law firm by another female.

102.  PW32 said that when he went to deal with the marriage procedures he was accompanied by WAN JEI (D2).  He described her as middle aged and rather short, around 40 years of age with a mainland accent.

103.  Before PW32 went to the mainland he met ON JAI (D1) again at the bus terminus in Prince Edward.  At that time, WAN JEI (D2) also arrived and ON JAI (D1) told PW32 to follow that woman she would be the one to take him to Fujian.  D1 then left.

104.  At the time, WAN JEI (D2) was together with a young man and woman they all boarded a direct bus to the mainland.

105.  PW32 crossed the border together with D2 WAN JEI as can been seen from their travel movement records.

106.  After arrival on the mainland, WAN JEI (D2) another female CHU JE came with them on the high speed rail journey to Fujian.  The journey took half a day and WAN JEI (D2) left with a man at an earlier stop.  On arrival CHU JE introduced PW32 to his prospective bogus wife/

107.  CHU JE accompanied PW32 to the marriage ceremony and the later obtaining of documentation relating to the bogus marriage.

108.  PW32 remained in the mainland for two to three days for the marriage and accompanying procedures and documentation.  These procedures related to the obtaining of a one-way permit for the bogus spouse.  PW32 returned to Hong Kong with CHU JE.

109.  Some days HUNG JE rewarded him by paying him HK$15,000 cash.  It was said that after completion of the bogus spouse getting her one-way permit then he would be paid a further HK$35,000.

110.  PW32 never received the balance of the monies.

111.  PW32 in a photographic identity parade identified D1 as ON JAI on 29 March 2019 and D2 as WAN JEI on 14 May 2019.

CHARGE 18 AGAINST D1 ONLY

Conspiracy to defraud

112.  In this charge a Ms LAM KUN YING (PW35) entered into a bogus marriage with mainland male Mr LUO ZHENG XIAN for a financial payment.

113.  PW35 said she was introduced by a friend to a person called a HUNG JE for the purpose of contracting a bogus marriage so as to earn some money.  PW5 initially said this occurred between 2015 and 2016.  She spoke with HUNG JE directly somewhere near Langham Place.

114.  She would get HK$3,000 directly for contracting the bogus marriage and the balance on completion.  The total amount being HK$30,000.

115.  HUNG JE introduced another male ON JAI (D1) to PW35.  ON JAI was there at her initial meeting with HUNG JE for tea.

116.  ON JAI took PW35 to a law firm in Mongkok to attend to documentation. She had to get documentation relating to her previous marriage, her divorce and Certificate of absence of marriage.  She recalled that this involved two trips to Mongkok and to Wanchai.

117.  She did not keep any of the documents, they were given to ON JAI.  PW35 and ON JAI attended the law firm in Mongkok together with HUNG JE.

118.  A date was arranged for PW35 to go to the mainland for the bogus marriage.  The date was about 10 days later.  However, PW35 did not go through with the arrangement at the time as she was pregnant sometime later in 2016. PW35 changed her mind as her boyfriend did not mind and had tried to arrange a bogus marriage for himself.

119.  PW35 met ON JAI again in Mongkok for one to two hours.

120.  PW35 was told she had to go to the law firm again to make an application to be married to a mainlander.

121.  The total amount of money would be given only after all the procedures were completed.  HUNG JE told her in front of ON JAI that she would be payed HK$30,000.

122.  PW35 obtained the Certificate of absence of marriage whilst accompanied by ON JAI.  This was obtained on 9 August 2016 (P52).

123.  PW35 said the marriage was less than one month later.

124.  The marriage was in late August 2016.  ON JAI was given the documents. ON JAI had payed for them.

125.  At the end of August, ON JAI (D1) travelled together with PW35 to the mainland for PW35’s marriage (see travel movement records of D1 and PW35).

126.  They went to Shanwei where they met the prospective bogus spouse.  They had a meal dealt, with the documentation and then conducted the marriage.

127.  The documentation was processed at the Public Security Bureau.

128.  After all the formalities were completed.  ON JAI and PW35 returned to Hong Kong.

129.  After returning to Hong Kong, PW35 and ON JAI met HUNG JE at Mongkok MTR Station where HUNG JE gave PW35 the balance of HK$27,000.

130.  PW35 never saw ON JAI or HUNG JE again.  PW35 said that ON JAI’s role was to assist HUNG JE.

131.  On 13 August 2019 by way of a photographic identification parade PW35 identified D1 as ON JAI.

CHARGE 19 AGAINST D1 ONLY

Conspiracy to defraud

132.  This charge concerns a bogus marriage entered into by a Hong Kong female, Ms KWOK WING YUK (PW37) with a mainland male Mr ZHUANG PINNENG.

133.  Mr ZHUANG wished to settle in Hong Kong as a result of this marriage.

134.  The marriage was contracted in 2015.  PW37 became aware of the possibility of making money from a bogus marriage as a result of a friend who gave her a WhatsApp contact number.

135.  She was told to go to the MTR Station in Mongkok.

136.  There she met a man (D1) and a woman, she asked the woman how to make quick money.  The man answered that it was a bogus marriage.

137.  If she agreed the next step would be to get money.

138.  The man added that if she agreed she would have to meet him to go through the procedures.  After the marriage she would receive HK$30,000.  There would be a balance of HK$40,000 if the man obtained an Identity Card.  PW37 was given money to obtain a certificate of absence of marriage which she obtained on 27 January 2015.  (See P56).

139.  The man accompanied her and PW37 gave the certificate to the man.  She was given HK$3,000 by him as remuneration.  The man told her that on 4 February she had to go to the mainland, she met the man again at Sheung Shui Railway Station.  Eventually the man travelled with PW37 to Guangzhou (see travel movement record P57).

140.  Then they met the bogus spouse ZHU.  They were required to memorise each others particulars.

141.  They then left for Shanwei to conduct the marriage at the C.A.B.

142.  They then returned to Guangzhou, she and the man (D1) returned to Lowu. PW37 crossed the border by herself, later HK$30,000 was transferred to her bank account.

143.  PW37 was told the balance would be given when the bogus spouse got a Hong Kong Identity Card.

144.  She received totally HK$33,000.  On occasions she did return several times to the mainland at ZHU’s request to assist with the TEE renewal.  She received further sums of money from ZHU.

145.  She did not see the man (D1) again.

146.  PW37 said that the man was called ON JAI and he had told her that on the 28 October 2019 PW37 attended a photographic identity parade where she identified D1 as being the man who was called ON JAI.

CHARGE 20 AGAINST D2 ONLY

Conspiracy to defraud

147.  In this charge a Hong Kong female SO CHEUK LING (PW41) entered into a bogus marriage with a Mainland male LIN SHAOHUA for payment of money.

148.  PW42 became aware of the possibility of making money from a bogus marriage after receiving an SMS from an unknown person.  The contents were about earning quick money.  This was in about October 2015 PW42 called the number she spoke to a man.  He suggested they meet.

149.  They eventually met at Mongkok MTR Station.

150.  PW42 was approached by a woman a Ms LEE suggested borrowing money but later she told PW42 that she should contract a bogus marriage to make quick money. Eventually PW42 agreed and it was arranged for them to meet at Langham Place.

151.  At Langham Place PW42 met a man and a woman.  They discussed a bogus marriage and a reward of HK$100,000 PW42 was given HK$1,000 to apply for a certificate of absence of marriage.

152.  PW42 obtained the certificate the following day.  See P68 dated 26 October 2015.

153.  She met Ms LEE the following day.  At the same time another woman was introduced she was called WA JE (D2).  Ms LEE and WA JE (D2) took PW42 to a legal firm in Mongkok to sign documents relating to the application for the marriage.  They were there for about one hour.  On 10/11 November the arrangement was made for PW42 to go to the Mainland for the bogus marriage ceremony.  WA JE was to accompany her and help deal with the procedures.

154.  They met at Prince Edward at the cross border bus stop.  PW42 followed WA JE (D2) to the Mainland.  WA JE later said HK$20,000 would be given to her once all the procedures were done for contracting the Mainland bogus marriage. She was not told how the remaining HK$75,000 would be paid.

155.  At the border WA JE (D2) and PW42 crossed the border together through the E-channel.  See P63.  They went to Fujian together on the high speed rail.

156.  WA JE (D2) took PW41 to the Civil Affairs Bureau to go through the procedures for the marriage.

157.  WA JE (D2) introduced PW41 to the man she was to marry.

158.  They were told to exchange personal particulars.

159.  They married.  The marriage certificates were kept by the bogus husband LIN.

160.  WA JE then was to take them to a place when a one-way permit could be applied for so that LIN could come to Hong Kong.

161.  It was too late.  Instead WA JE took and copied PW42’s home visit permit and identity card.  WA JE and PW41 stayed the night and WA JE gave PW 41 HK$20,000.

162.  WA JE assisted PW41 to purchase an air ticket to return to Hong Kong for which WA JE paid.

163.  The witness was never paid the $75,000 promised to her.

164.  She never saw WA JE or Ms LEE again nor did she see her bogus spouse again.

165.  PW41 described WA JE as in her forties medium build and spoke with an accent.

166.  On 30 November 2020 PW41 was able to identify D2 as WA JE during a photographic identification procedure.

The admissibility of the identification evidence

Photo ID evidence of the civilian witnesses

167.  All the civilian witnesses who took part in the identification of D1 and D2 did so by way of photo identification.  No in person ID parades were held as a result of the defendants indicated unwillingness to take part in such identification parades.

168.  The admissibility of the photographic identifications of D1 and D2 was challenged on the following basis:-

(1) That the holding of in person Identifications were not rejected by D1 and D2. This issue is resolved in the accompanying special procedure investigation. I resolved this in favor of the prosecution.

(2) That if the photo identifications were conducted without any material irregularity there is no evidence of consideration of any other alternative forms of identification.

(3) The civilian witness the parties to the bogus marriages participated in the photo album identifications a significant time after events relevant to the charges are concerned.

(4) The civilian witnesses at most were only able to provide a general description of the suspects under an alias.

(5) That the admission of photo identification in the circumstances of this case is inappropriate and more prejudicial than probative.

SUMMARY OF THE CIVILIAN WITNESSES IDENTIFICATIONS

PW11 LAI CHING YI Charge 4

Identification of D1 and D2

169.  PW1 was with D1 when he was taken to the Immigration Office in Tsim Sha Tsui and also to a law firm in Mongkok.  The events taking place in late 2016.

170.  On 15 January PW11 met D2 and crossed the border with her and remained with her whilst the bogus marriage took place in the mainland a period of over twenty four hours PW11’s description of D1 was.  In his forties about 1.7 meters.  I will recognise him D2 was described as a little short shoulder length curly hair.

171.  The photo identification of D1 and D2 took place on 11 March 2019.

PW15 LEE YIU MING

Charge 5 identification of D1 and D2

172.  PW15 met D1 in November 2017 when they went to a law firm in Mongkok together to deal with documents and procedures relevant to the bogus marriage. PW15 was with D1 for about one to two hours.

173.  PW15 met D2 on 22 November 2017 when he travelled in the Company of D2 to Fujian to Contract the bogus marriage.

174.  They crossed the border together as can be seen from their travel movement records PW15 was in D2’s Company for some thirty hours.

175.  PW15 described ON JAI (D1) as male around thirty to forty years old medium stature with his hair tied up.  He’s about half a head shorter than me around 1.6 cm I think.  He spoke pure Cantonese.

176.  He described D2 as follows: female around forty to fifty years old, short and fatty, spoke in Cantonese with an accent.

177.  PW15 said he would recognize them both.

178.  In an photo identity parade on 11 March 2019 PW15 identified both D1 and D2.

PW19 WONG KAI MAN

Charges 6, 15-17 against D1 only

179.  In these charges the witness identifies D1 in respect of the offences committed in 2014.

180.  In respect of D1 PW19 is said to have met him on 20 October 2014 when the certificate of absence of marriage was obtained he was also taken to a law office in Mongkok by D1.

181.  PW19 described D1 as about 30 years old medium build with short hair, he did not wear glasses.  He is a Hongkonger.

182.  He would definitely recognize him if he sees him.

183.  On 19 February 2019 PW19 identified D1 in a photo identification parade.

PW21 CHOI WAI KIT

Charges 7, 11-13 against D1 only

184.  PW21 knew D1 as ON JAI.  The offences were committed in 2015.  PW21 is said to have met D1 when D1 gave him money to apply for a certificate of absence of marriage.  They also went to a law firm in Mongkok together.

185.  PW21 said he called him ON JAI and did not know his full name.  He was around forty years old of thin build with short black hair.  He did not wear glasses and was approximately 160 to 170 cm tall.  He did not speak pure Cantonese but with an accent.

186.  He would recognise him again.  On 27 February 2019 PW21 attended a photographic identity parade and identified D1.

PW24 CHENG WAI LUN

Charges 8 and 14 against D1 only

187.  The charges related to events which occurred in early 2014.

188.  D1 was introduced to PW24 and assisted in the application for a certificate of absence of marriage.  He also travelled to the mainland together with D1 as can be seen from travel movement records.  He called D1 AH ON, he described AH ON as follows:  He’s about forty years old and about 1.6 meters tall.  He’s thin.  He had a dark completion and an accent.  I will recognize him if I see him.

189.  On 27 February 2019 PW24 identified D1 at a photographic identity parade.

PW28 CHAN SHUI CHUNG

Charge 9 identification of D1 and D2

190.  This charge relates to events in mid 2017.  D1 is said to have taken the witness to apply for a certificate of absence of marriage and then to a law firm in Mongkok to deal with other procedures.

191.  They also met when D2 was introduced D2 accompanied PW28 to the Mainland and on to Fujian.  They crossed the border together (see the travel movement records) for the marriage.  D2 also took the witness to the PSB to apply for an Exit Endorsement.

192.  PW28 described D1 as ON JAI.  He did not know his full name.  He was about forty five years old and about 1.7 meters tall, a little thin and more short hair.  He would recognize him if he saw him.

193.  D2 he called WAN JE.  She was about forty years old and about 1.6 meters tall, she is a little fat and had an accent, she took him to Fujian and arranged to take marriage formalities.

194.  On 25 March 2019 PW28 identified both D1 and D2 by way of a photographic identity parade.

PW32 YEUNG WAI

Charge 10 against D1 and D2

195.  The events that concerned this witness occurred in early 2016.

196.  D1’s involvement was to assist PW32 in obtaining the certificate of absence of marriage in Tsim Sha Tsui.

197.  D2 was involved in accompanying PW32 to the law firm in Mongkok to deal with documentation there.

198.  D2 also accompanied PW32 to travel to the Mainland.  They travelled together to Fujian.

199.  His description of D1 was: “I only know that he’s called ON JAI.  He’s about forty years old and about 1.6 meters tall.  He was thin.”

200.  He described D2 as follows: “I don’t know her full name.  She’s about 40 years old, about 150 cm tall, long straight hair, fair skin and spoke with an accent.”

201.  PW32 attended two photographic identity parades on 29 March and 14 May 2019 and identified D1 and D2.

PW35 LAM KUN YING

Charge 18 against D1 only

202.  Ms LAM was involved with D1 between late 2015 and August 2016.

203.  In August 2016, PW35 had been take to the Immigration Office in Tsim Sha Tsui to obtain a certificate of absence of marriage by ON JAI (D1).  Afterwards he had taken her to a law firm in Mongkok to prepare further documentation.  He had paid her HK$2,000 at that time.

204.  In August D1 had also travelled with PW35 to Shanwei in the Mainland. (See the travel movement record) for the purpose of contracting the marriage.

205.  PW35 had simply described ON JAI D1 as follows: “He is forty years old and speaks Cantonese with an accent.”, later she added: “he was about 1.7 meters tall, speaks with a slight accent and does not speak pure Cantonese”, she would recognize him if she had a chance to see him.

206.  PW35 attended a photographic identity parade on 15 August 2019 and identified D1.

PW37 KWOK WING YUK

Charge 19 against D1 only

207.  Ms Kwok was involved in contracting a bogus marriage in 2015.

208.  She met D1 when she was taken to apply for a certificate of absence of marriage and then taken to a law firm in Mongkok for the preparation of other documents.  D1 paid her HK$3,000.  D1 and PW37 travelled together to Guangzhou.  In February 2015 (See travel movement record) and then to Shanwei for the marriage.

209.  Her description of D1 was as ON JAI, she said she would recognize him again.  On 28 October 2019, PW37 identified D1 at a photographic identity parade.

PW41 SO CHEUK LING

Charge 20 against D2 only

210.  Ms So contracted her bogus marriage in November 2015.

211.  She called D2 WAH JE and met her when she went to a law firm in Mongkok to prepare certain documentation.  On 11 November 2013 PW41 and D2 travelled to Fujian together for the marriage ceremony.  D2 also paid HK$20,000 to PW41.

212.  PW41 described D2 as WA JE in her forties, medium build, spoke with an accent.  She did not remember her height.

213.  On 30 November 2020, D2 positively identified D2 at a photographic identity parade.

THE SPECIAL ISSUE INVESTIGATION AND RULING

Documentary Exhibits

214.  Both defendants objected to the admissibility of certain documents that formed part of the prosecution case.  In respect of D1, these were P1 to P6.

215.  In respect of D2, these were P7 to P9.

216.  For D1, it is said that his signature to these documents were obtained under “pressure” and “threat”.

217.  For D2, it is said that her signature to the documents was obtained by threat and inducement.

The case of D1 - summary

3.1.2019

218.  On 3.1.2019, D1 went to the Immigration Department for the extension of his bail.

219.  PW2 (WONG CHAK FAI) directed him to another room.

220.  D1 was told an ID parade (identification) would be conducted.  D1 said he requested inter alia a solicitor to be present.

221.  PW2 said as no solicitor was present then, D1 was taken to have refused to take part in the ID parade.

222.  D1 was then required to sign documents to that effect.  Saying that this would save a lot of time, none of PP 1-3 was read or explained to D1.  He was never informed he could return with a lawyer for an ID parade.

21.10.2019

223.  D1 was required to attend Wong Tai Sin Police Station that day to extend bail.

224.  D1 was taken by Immigration officers to Kowloon Bay to investigate two further bogus marriage case.

225.  D1 says he gave the telephone number of his then solicitor to Immigration officers but was told that this phone was switched off.  D1 did not ask for another solicitor when asked if he needed one.

226.  In respect of PP 4-6, D1 was told if he did not sign he would not be released.  The documents were not read or explained to him.

227.  After signing he was allowed to be released.

D2’s case

228.  On 26 February 2019, D2 was arrested by Immigration officers at Lok Ma Chau Control Point.  At Immigration Officers at skyline office, however a Fuzhou I/T asked D2 to sign a notice to persons in custody, D2 refused to sign and asked to make a phone call.

229.  A TAM CHI HUEN told D2 she had to sign if she did not want to be imprisoned and refusal to sign would she could not make a call to a lawyer and she would not be allowed to leave.  D2 then signed.  The document was not explained to D2.

230.  On 27 February 2019, D2 was taken from detention and asked if she wished to take part on an ID parade.

231.  D2 asked for a lawyer, one LAM CHUN YIP took out an identification parade notice to suspect and told D2 to put down she was not willing and then to sign the document as it would save time and a lawyer would not be needed. If she did not she would continue to be detained under threat an inducement D2 signed the document.  Without time for it to be read and explained to her.

232.  On 28 February 2019, D2 signed a no loss or damage complaint form, she signed because she was told if she did not she would be imprisoned.

The evidence

D1 – 3.1.2019

233.  PW3 gave evidence, he said nothing to D1 and was simply there to witness the procedure.  He said a person of his rank would not be the person to ask a suspect if he wished to take part in an identification parade.  He never spoke to the D1 about a solicitor.  He was in fact outside the room when D1 was asked to sign documents.

234.  In fact he only saw PP1 being signed.

235.  It was PW3 who served the ID parade notice on D1.  He saw D1 read and sign PP1.

236.  PW2 witnessed that then left the room.  As to the ID parade notice D1 indicated he was not willing to take part.  After that PP3 was signed by D1 to indicate he had no complaint.  PW3 dented D1’s case in cross-examination.

237.  PW4 SHEK CHAK MING dealt with D1 on 21 October 2019.  He read and explained PP4 to him and D1 signed.

238.  He later presented the ID parade notice to D1 (PP5) he read it once and left D1 to fill in if he was willing to take part in the ID parade.  D1 circled not willing, PP6 was then read and explained to D1, he signed in acknowledgement.

239.  PW4 disagreed with D1’s case when it was put to him.

PW5 NG KA PO

240.  PW5 dealt with D2 on 27 December 2019 together with a Fuzhou Interpreter a Mr WONG.

241.  All dealings with D2 went through the interpreter.  The documents was read and explained by the Interpreter Mr WONG.  An Immigration Assistant TAM CHI HUEN was also present.

242.  The Fuzhou Interpreter was arranged at the request of D2.

243.  He said D2 did not request to make a phone call nor did he say that unless she signed the notice to persons in custody, she could not make a phone call or contact a lawyer.

PW9 TAM CHI HUEN

244.  PW9 gave evidence, he supported PW5’s evidence, he also denied D2’s case as it was put to him.

PW6 LAM CHUN YIP

245.  PW6 gave evidence about D2’s signature on the notice of identification parade PP8 and PP9.  D2 was handled by PW6 through the Fuzhou Interpreter who read and explained the document to her.

246.  He said that D2 was clearly informed about her right to engage a solicitor and in fact had spoken to a solicitor prior to signing PP8.

247.  PW6 did not agree with any part of D2’s case when it was put to him.

248.  PW7 Mr WONG was the Fuzhou Interpreter, he said D2 clearly understood Fuzhou.  He had no direct conversation he simply translated what the others said.

249.  He read and explained the documents to D2 in Fuzhou.

250.  He never heard D2 make any request to make a phone call.

251.  It was never said to D2 that if she did not sign, she would be imprisoned.

252.  In fact Mr WONG comprehensively denies the allegations made in D2’s case as they were put to him.

253.  In respect of all the documents signed by D2 he said.  He remembered what happened.  He did his job faithfully.  He neither knew the defendant or the Immigration officers and he was a neutral.

254.  In summary all prosecution witness denied and every element of D1 and D2’s cases which would support the application to exclude the challenged documents from the evidence.

THE DEFENCE EVIDENCE

D1

255.  D1 gave evidence in accordance with his grounds of objection.

256.  He had attended the Immigration Department on 3 January 2019 to answer bail he was given prior on notification of the service of Form 898 on him that day.

257.  Lam Man Lun had asked him if he was willing to take part in an Identification parade.  He had asked only this was no prior notice and said he did not have a lawyer.  They had replied no lawyer is present you are not willing to participate.  If you don’t do it, it saves a lot of time.  Its ok for you not to sign the document.

258.  They said if he refused to sign he would not be allowed to leave.

259.  The document was not read or explained to him.  He signed because he believed he would not be released if he did not sign.

260.  On 21 October 2019, he again had no advice that he would be asked to sign Form 898.

261.  He spoke to Shek Chak Ming and Chow Piu Yuen, Immigration Officers.  D1 told them he had not contacted his lawyer and gave his lawyer’s number to the officers.  They told him the lawyer could not be reached at that number.

262.  D1 said there was no need to contact another lawyer.

263.  After they arrived at Kowloon Bay.  They presented Form 898 to him. They said you are still not willing to participate in any Identity parade.  D1 again replied that he did not have a lawyer.

264.  They told him if he refused to sign he would definitely not be allowed to leave.  He signed for this reason.  The documents he signed was never read and explained to him.

D2’s evidence

265.  D2 gave evidence in accordance with her grounds of objection.

266.  She had come to Hong Kong in 2014.  Educated to primary level in China. She did not read traditional Chinese characters and understood a bit of Cantonese.  D2 was originally arrested at Lok ma Chau and eventually transferred to Lok Ma Chau and then Kowloon Bay.  She was dealt with by the interpreter Mr Wong and Ng Ka Po.

267.  She was told she had to sign P24 and Ng Ka Po said if she did not sign she would not have a lawyer or make a phone call and she would be detained.

268.  The Interpreter said Wong detained has to go through these procedures.

269.  The documents were not read and explained to her.

270.  In respect of Form 898.  She spoke to Lam Chun Yip and the Interpreter. She was told loudly that she was not willing to take part in an identity parade.

271.  Lam Chun Yip told her to put down not willing on the Form 898.  She was told it was simple and did not require a lawyer.  She would be bailed otherwise she would be detained.

272.  She accordingly circled unwilling write down not willing and signed. The document was not read or explained to her.  After signing she was allowed to phone a lawyer.

273.  P76 was signed as a result of a further threat that if she did not sign she would be detained.  The document was not read or explained to her.

274.  D2 also said she did understand that on 24 April 2019 when her lawyer indicated that D2 did not want to take part in any identity parade.  She said she believed they were referring to a photographic identification.

D1 Issues

275.  D1 said that his Evidence of Impropriety by Immigration Officers was unshaken.

276.  That the Immigration Department conducted the issue of the signing of Form 898 with unfairness.  There was no prior notification to the defendant that such a procedure would be conducted.  The defendant want to attend bail and he was ambushed.

277.  The defendant he had not directly refused he merely said he wished to consult a lawyer.

278.  That the Immigration Department actual unfairly.

279.  They used one Form 898 to cover 8 further photographic identifications over many months.

280.  The second Form 898 only covered one further photographic identification.

D2 Issues and Submission

281.  It was also submitted that D2’s evidence of Immigration Department impropriety was not shaken.

282.  It was said that the fact that D2 spoke to a lawyer immediately after signing the Form 898 supported her contention that she only signed as a result of a promise by CY Lam that she would be able to do so and would be released see D2-2.

283.  That her evidence about her understanding of events in Court on the 24 April 2019 should be accepted.

RESOLUTION OF THE ISSUES

Common Issues

284.  The prosecution must prove that the signatures and option chosen by the defendants in relation to Form 898 were provided voluntarily.

285.  In this case this means that the prosecution must prove beyond reasonable doubt that in the obtaining of these signature, the Immigration Department did not use threat, force, inducement or oppression and that the process itself was conducted fairly.

286.  In particular, her both defendants say that they were instructed to sign the document and induced to do so by the accompanying threat that they would not be released if they did not do so.  They say the process was conducted unfairly in that the documents were not read to them or explained to them neither did they have the opportunity to read them themselves.

287.  The defendants were on this issue are to be considered separately the evidence relating to different factual circumstances and different dates.

D1 Resolution of the Issue

288.  All the Immigration Officers called to give evidence in respect of the two occasions.  D1 signed the challenged documents, denied in detail each and every allegation made by the first defendant.

289.  The officers themselves appeared reliable truthful and credible, I had no basis upon which do not place full reliance on their evidence.

290.  Although the defendant gave evidence in accordance with his allegations he was unable to elucidate why he would be subject to such conduct on two separate occasions over many months and yet not complain or take any action to indicate he had been treated in the manner he alleges the officers behaved.

291.  I found the defendants evidence lacked credibility and reliability.  I rejected it in its entirety.

292.  His evidence appeared to me to be wholly tactical.  He clearly did not want to take part in an identity parade and made his intentions clear at the time.  In fact, repeating it in October 2019.  In these circumstance, it appears the Immigration Department acted properly in using Photographic identifications.

293.  I found that the prosecution had proved the admissibility of the challenged documents and I admitted them into evidence.

D2 Resolution of the Issue

294.  In D2’s case 3 documents were challenged.  As with D1 all the Immigration Officers called to give evidence denied in detail all the allegations of impropriety made by her.  Furthermore, these officers dealt with D2 through an interpreter.  He emphatically denied all the allegations made against him.  He was particularly convincing and appeared almost insulted that such clearly untrue allegations should be made against him.

295.  I found all the prosecution witnesses on this issue to be truthful reliable and credible.  I placed full weight in their evidence.

296.  The same could not be said for the second defendant.

297.  She claimed that she had been threatened into refusing an identity parade yet in a letter written by her solicitor not long after they say: “our client has previously refused to attend the identification parade arranged by your department.”  No mention being made that on the second defendants case such refusal was supposedly as a result of a threat.

298.  Again from P77 it can be seen that her solicitor at Shatin Magistracy in April 2019 again re-iterates her lack of consent to attending an identity parade again no reference being made to the alleged impropriety that occurred during the obtaining of her signature to the Form 898.

299.  I am satisfied that D2 was untruthful her evidence is a later invention and that at the time of signing the Form 898 she did not wish to attend an identity parade a position which was affirmed later by her solicitor in Court.

300.  Her evidence that she misunderstood her solicitor and thought he was referring to a further photo ID parade is again clearly untruthful.

301.  I rejected D2’s evidence in its entirety the challenged exhibits had been proved to be voluntary by the prosecution and I admitted them into evidence.

THE EVIDENCE

302.  In addition to the bogus spouses evidence a large numbers of Immigration Officers were caused to attend for cross-examination.  They were in essence all the witness who had at any time dealt with the ‘bogus spouses’ during the course of the investigation.  So I heard from the officers who took their records of interview (ROI), their Non-prejudicial Statements (NPS) and who witnesses the Photo ID’s parades along with other officers who supervises the investigation.

303.  The purpose of their being called was for the defence to impugn their evidence on the basis apparently that the defendants had been wrongly identified as the co-conspirators of the bogus spouses and that they had all behaved improperly in a large conspiracy to implicate the defendants.  All witnesses both Immigration or Civilian denied this took place.  There was no positive evidence provided by the defence to support these propositions.

THE DEFENCE CASE

D1

304.  The first defendant did not give evidence.

305.  No witnesses were called on behalf of D1.

306.  Transcripts by Court proceedings related to Prosecution witnesses were submitted on behalf of the defence case.

D2

307.  The second defendant did not give evidence.  D2 is of clear record.

308.  No witnesses were called on behalf of D2.

309.  The defence case therefore did not rely upon any adverse case advanced by way of the testimony of any defence witnesses.

310.  Certain exhibits were placed before the Court as a part of the defence case.

311.  However, the case of both defendants relied primarily upon cross-examination of prosecution witnesses and submissions.

Legal Consideration

312.  The prosecution brings the case.  The burden of proof remains upon them at all times.  It is the prosecutions duty to prove the case against the defendants beyond a reasonable doubt.

313.  The case against each defendant is to be separately assessed.

314.  No adverse inference can be drawn from the decision of a defendant not to give evidence.  The burden of proof remains on the prosecution at all time.

315.  The second defendant had a clear record, this is relevant to both her propensity to commit these offences and also to the reliability of any testimony given by her.

The Charges

The Conspiracies

316.  The defendants fact the following charges:-

(a) Conspiracy to defraud;

(b) Conspiracy to obtain services by deception;

(c) Conspiracy to make a false representation;

(d) Conspiracy to make a false statement.

317.  Conspiracy is an inchoate offence.  It is an agreement to do an unlawful act or a lawful act by unlawful means.

318.  The actus reus is the physical acts of the conspirators by words gestures or conduct that signify a concluded agreement between two or more of them for the commission of a crime or crimes.

319.  The prosecution must prove that the defendant had the intention to do the unlawful act.  A conspiracy to defraud exists when a person becomes a party to an agreement with another to use dishonest means to cause another to act contrary to his public duty.

320.  The civilian witness bogus spouses were all participants their conspiracies.  It was necessary to bear this in mind when assessing the veracity and reliability of their evidence.  All the civilian witnesses had pleaded guilty to charges reflecting their involvement in these conspiracies. None had been sentenced.  They all stood to gain from their evidence.

Identification Evidence

321.  In this case all the identifications of D1 and D2 were conducted by way of photographic identity parades.

322.  The prosecution must prove the defendants participation in the crime alleges.

323.  The prosecution must prove beyond a reasonable doubt the correctness and reliability of the identification of the defendant as a participant in the crime.

324.  The prosecution can prove identity by way of photographic means.  They can ask a witness to identify the accused from a selection of photographs is admissible on the same basis as evidence of an act of identification at an identity parade.

325.  In this case photographic identification was pursued as a result of the defendants refusal to take part in identification parades.

326.  In any identification it is necessary to be aware that a special need for caution is required.

327.  The circumstances of any identification should be closely examined, i.e. how long did the witness have the accused under examination at what distance. In what light, was the observation impeded in any way.  Had the witness seen the defendant before.  How long elapses between the original meeting any subsequent identification, was there any material inconsistency or irregularity between the original description and the defendants appearance, see R v Turnbull, when considering an identification made from a photographic parade.

328.  The court should consider whether the photographs present a varied range of appearances.

329.  Whether the witness has previously viewed any photographs of the defendant and whether any direct or indirect help was given to the witness in making the identification.

330.  Where there is other evidence to support the evidence of identification of a witness, it may be used to support the identification, circumstantial evidence can support an identification.

331.  In this case there are numerous occasion when the defendants travel across the border with the witness as established by travel movement records see MFI 5.  This evidence is capable of supporting their evidence of identification.

332.  One identification may support another identification see R v Barnes 1995 2 Ct App R491 where it was considered that multiple identifications some of which may be termed fragile may support mutual support for each other especially when there is a striking similarity in the offences of which the accused is facing.

GENERAL APPROACH TO CHARGES AND DEFENDANTS

333.  The parties respective cases and the issues disclosed.

334.  The prosecution case was simply put.  That the bogus spouses was credible and reliable, that their identifications of the defendants as conspirators was reliable and supported on a number of occasions by the fact that the bogus spouses and defendants had crossed the border together as could be seen from the document MFI 5 which is produce herein in full:-

MFI 5: This evidence shows a clear pattern and could also be used to support those cases when the bogus spouses had not crossed the border with the defendants. It was said it also clearly supported the identification evidence of all the bogus spouses.

see Annex 1

The Defence Case

335.  The defence case of necessity was advanced by way of submission and speculation as no defence evidence was called to counter the evidence of the prosecution witnesses.

336.  It was generally put to the bogus spouses that they were mistaken, unreliable, untruthful and had made their statements and identification at the leading and suggestion of the Immigration Officers and in order to get favourable treatment from the court handling these case.  Of course none of the witnesses both Immigration or Civilian conceded any of these points.

337.  The submissions made, relied on the cross-examination of the witnesses and were somewhat of the nature of conspiracy theories.  I will deal with them later in more detail.  However, at the end of the day they could not be seriously considered as an impediment to the credibility or reliability of any of the witnesses.

FINDINGS GENERAL

General Observations

338.  Naturally each charge against each defendant must be considered separately.  However, in this indictment there is a considerable overlap between the charges and the defendants.  Particularly in the roles undertaken by them during the overall course of the events disclosed by the charges.

339.  Notably different civilian witnesses ‘bogus spouses’ assign the same role to particular defendants throughout their dealings with them this overall picture cannot be ignored and to this content the witnesses can be supportive of each other.  This is also relevant to the weight that should be attached to the evidence of each particular witness.

340.  The overall picture can be seen from the following summary:-

Charge 4: D1 and D2

Witness: LAI CHING YI (PW11)

Date: 2016

Role:

D1 took witness to obtain Certificate of Absence of Marriage in TST (Tsim Sha Tsui) and solicitor in Mongkok.

15 January 2017

D2 accompanies witness to Mainland for marriage and documentation see TRM (Travel Movement Record).

Charge 5: D1 and D2 jointly

Witness: LEE YIU MING (PW15)

Date: 2017 November, December

Role:

D1 took PW15 to solicitors office in Mongkok.

D2 accompanied PW15 to Mainland for marriage ceremony and documentation (see TRM).

Charges 6, 15, 16 and 17: D1 only

Witness: WONG KAI MAN (PW19)

Date: 2014

Role:

D1 took PW19 to a law firm in Mongkok for documentation also payed PW19 a reward also negotiated the conspiracy with PW19 to include representing himself as the natural father of GAO DAN’s child.

Charges 7, 11, 12 and 13: D1 only

Witness: CHOI WAI KIT (PW21)

Date: 2013

Role:

D1 approached PW21 to provide monies for obtaining of the Certificate of Absence of Marriage requesting PW21 to go to the Mainland for the marriage and to accompany the Mainland spouse LIU XIAO CHIN to come to Hong Kong for the purpose of the confinement booking.

Charges 8 and 14: D1 only

Witness: CHENG WAI LUN (PW24)

Date: 2014 to March 2015

Role:

D1 Instructed PW24 to apply for a divorce certificate and Certificate of Absence of Marriage.

PW24 travelled to the Mainland with D1 (see TMR) when PW24 signed a declaration for Mainland Authorities.

16 February 2014 D1 and PW24 travel back from the Mainland together (see TMR).

PW24 received a reward from D1. In March 2014 D1 instructs PW24 to accompany bogus Mainland spouse LIU CUI HUA to Hong Kong for the purpose of confinement booking.

Charge 9: D1 and D2 jointly

Witness: CHAN SHUI CHUNG (PW28)

Date: 2017

Role:

D1 took PW28 to apply for Certificate of Absence of Marriage in TST and then to the law firm in Mongkok for documentation, present when D2 was introduced.

D2 took PW28 to the Mainland for the purpose of conducting the bogus marriage and obtaining the relevant documentation (see TMR).

Charge 10: D1 and D2 jointly

Witness: YEUNG WAI (PW32)

Date: 2016

Role:

D1 took PW32 to TST to apply for the Certificate of Absence of Marriage.

D2 took PW32 to the law firm in Mongkok for further documentation.

D2 accompanied PW32 to the Mainland for the purpose of the bogus marriage (see TMR). The actual meeting with the bogus spouse was handled by another person CHU JEI in the Mainland.

Charge 18: D1 only

Witness: MS LAM MUN YING (PW35)

Date: 2016

Role:

D1 accompanied PW35 to obtain Certificate of Absence of Marriage in TST.

took witness to law firm in Mongkok for marriage documentation also gave PW35 a reward.

In August 2016 D1 took PW35 to the Mainland for the purpose of conducting a bogus marriage (se TMR).

Charge 19:- D1 only

Witness: KWOK WING YUK (PW37)

Date: 2015

Role:

D1 took PW37 to TST to apply for a Certificate of absence of marriage record and then to a law firm in Mongkok for documentation he also gave PW37 a Cash reward.

In 4 February 2017, D1 accompanied PW37 to the mainland to contract a bogus marriage to the mainland spouse Zhuang Pinneng.

Charge 20: D2 only

Witness: Ms SO CHEUK LING (PW41)

Date: November 2015

Role:

D2 took PW41 to a law firm in Mongkok sign documentation for the marriage.

On 11 November 2013, PW41 was accompanied by D2 to go to the mainland for the bogus marriage with LIN SHAOHUA and after the marriage paid PW41 a HK$20,000 reward.

341.  The TMR records (Travel Movement Records) are significant in that in respect of every single charge they confirm the movements of the witnesses into the mainland for the conduct of the bogus marriages.  They then confirm the movements of the bogus spouses into Hong Kong subsequent to the bogus marriages.  Furthermore, there is documentary support for the fact that each civilian witness obtained a Certificate of absence of marriage before going to the mainland to conduct the bogus marriage.  It is not challenged that these marriages took place.

342.  Also of importance is that on every occasion that a civilian witness evidenced that they were accompanied by a defendant to cross the border for the purpose of conducting a bogus marriage in the mainland.  That this is confirmed by the TMR of the respective defendant.

343.  The TMR’s directly confirm the defendants involvement and participation as follows:-

Charge 4 – D2

Charge 5 – D2

Charges 8 & 14 – D1

Charge 9 – D2

Charge 10 – D2

Charge 18 – D1

Charge 19 – D1

Charge 20 – D2

344.  It is only in relation to Charges 6, 15, 16 & 17; and Charges 7, 11, 12 & 13, that such evidence does not exist however in these charges the civilian witness did not say that either D1 or D2, accompanied them to go over the border to contract the bogus marriages.

345.  I found this evidence highly supportive of the veracity of the respective civilian witnesses evidence.  It confirmed the involvement of the defendants and the participation of the defendants in the charges conspiracies.

346.  It provided clear material confirmation of essential parts of their evidence.

347.  It was also evidence that remained unanswered throughout.  This is certainly a case where it was an essential feature of the prosecution case.  In the circumstances of each of these charges it provided the kind of evidence which if left unanswered would as a matter of inference lead to a conclusion of fact being drawn against the respective defendant.

Identification evidence

348.  The prosecution need to identify the participants in any criminal charge.

349.  In respect of every charge and each defendant the prosecution decided to conduct identification by way of using a set of photographs.

350.  This procedure was highly criticized by the defence.

351.  It was said the defendants had not rejected the use of a normal identification parade.

352.  After hearing evidence on this issue I reached the conclusion that each defendant had clearly rejected this option.

353.  The first defendant on two occasions at the beginning and end of the investigation.

354.  The second defendant at the beginning of the investigation and then later in court.

355.  It was clear that the defendants each rejected proceeding by way of a formally conducted identity parade at which they would be present.

356.  The Immigration Department then had to decide how to proceed with identification.

357.  I was referred to their own internal guideline produced as MFI 1.

The documentation and Operation Procedures

358.  This document provided guidance on the options to be considered when an identification parade was not possible.

359.  The other methods of identification were identified as:

360.  Consensual group identification non-consensual group identification street identification and finally photo identification parade.

361.  These were not listed in order of preference.  The final decision rested with the OC case subject to legal advice received.

362.  The two OC case decision makers opted to conduct photo identification parades.

363.  When asked why they close this option they said that without the co-operation of the defendants this was the fairest and most practical way to proceed.

364.  This decision was subject to intense criticism by the defence it was said the other methods listed should have been conducted before the option of photographic identification was considered.  That the defendants should have been approached on every occasion that an identification was proposed.

365.  I saw nothing remarkable in the approach taken in this case.  It is clearly sensible to decide that in the absence of consent the only practical approach was to conduct photographic identifications.  The other methods would require some consent from the defendants or would mean effectively ambushing the defendant with the witness which would be impractical and unfair, I consider the use of photographs identifications was a proper approach.  It did not in any way compromise the identification process.

366.  It was also not necessary for the Immigration Department to review their request to the defendant every time they wished to conduct an identification. It was always open to the defendants to request the conduct of an identification parade.  It was confirmed in evidence that such a request would have led to an identification parade taking place.  The lack of identification parades in this investigation was solely the consequence of the refusal by the defendants to take part in such parades.  The actions of the Immigration Department cannot be criticized.

367.  The identification by way of photographic identification was a fair and practical solution.  The identifications obtained both admissible and of evidential value.  The actual value will be assessed during consideration of the evidence available on the individual charges.

The overall Conduct of the Immigration officers during the Investigation

368.  The defence case as advanced in cross-examination cast doubt upon the conduct of the Investigation.

369.  There were two main allegations bought firstly that the conduct of the photographic identifications was corrupted.  In that even if such a form of identification was appropriate in this case, then the way in which it was conducted meant that the actual identifications had not evidential weight.

370.  The thrust of this argument was that firstly the officers conducting the identification either knew or were informed which photograph in the album of twelve photographs related to the suspect who was required to be identified.

371.  Secondly that the officers conducting the identity parade either directly or indirectly indicated to the identifying civilian witness which photograph they were required to identify each identification by a civilian witness required the calling for cross-examination of the two Immigration officers who conducted the photographic identification and also the officer who instructed those officers to conduct the photographic identification.  Also the civilian witnesses (bogus spouses) also answered questions in this regard.

372.  It is not necessary for my findings to examine each witnesses evidence in any detail.

373.  All matters put in cross-examination were clearly denied by the witness.

374.  All Immigration officers denied of that any indication was given which would identify the suspect in the photograph album.

375.  The two officers conducting the investigation in each case did not know and could not have identified the suspect themselves so it was not possible that they could have directly or indirectly indicated the identity to a suspect.

376.  Furthermore, each civilian (bogus spouse) witness denied that they had been given any indication directly or indirectly which photograph related to the suspect.  They were all clear they made the identifications clear of any influence.  They were all sure of their identifications of the respective defendants.

377.  There was some criticism of the selection of photographs for the photograph albums.  It was said they were not sufficiently varied and that the same photographs were used on every occasion.

378.  I saw nothing in these submissions.  The photographs provided a broad range of similar physical types.

379.  The fact that the same photographs were used for each civilian witness is not material as it would be the first time they were to view the photographs.  Overall I saw no merit in the criticisms of the conduct of the photographic identifications I dismissed this as a factor in my decision making.

Prior viewing of defendants photographs by civilian witnesses

380.  In respect of three civilian witnesses: 1) Lai Ching Yi PW11 Charge 4; 2) Chan Shui Chung PW28 Charge 9 and 3) Kwok Wing Yuk PW37 Charge 19.

381.  In cross-examination they said that they had seen photographs of D1 and D2 during the investigation process.

382.  PW11 said in cross-examination that he saw two photographs on the day that he was arrested.  He was asked if he recognized them.  PW4 said it was done by the female officer who took the statement a person surnamed LAM PW11 was not told that the persons were suspected or related to a bogus marriage syndicate.

383.  PW28 said that he was shown three photographs ON JAI (D1), FONG JEI and WAH JE (D2) before a statement was taken from him.  He was told that these were the three persons who arranged his bogus marriage.  They were passport sized photographs.

384.  Later PW28 said he had not been shown photographs at the police station before the interview.  He said the photographs had only been shown to him at Lai Chi Kok during the photographic identification.  He then later agreed he had been shown the photographs when renewing his bail at Kowloon Bay.  He then later changed his evidence and said it occurred at Lai Chi Kok.

385.  Although in further examination he said that he was shown the photographs at the time of the arrest.  It was clear that could not be the case as D2 had not been arrested or photographed at that stage.

386.  PW37 said she saw two photographs of ON JAI (D1) on the day of her arrest.

387.  No Immigration officer called who dealt with these two witness admitted showing any photographs to PW4, PW28 and PW37 during the investigation process.

388.  I was deal with the effect of this evidence when I consider the individual charges.

The taking of the records of Interviews and Non-prejudicial statements from the civilian witnesses

389.  During the investigation on arrest a record of interview was taken from the civilian witnesses (bogus spouses) and if they agrees to become prosecution witnesses then a further statement would be taken as a witness statement.  This was called a non-prejudicial statement and would provide the basis for the evidence which would be given in court.

390.  The defence case sought to impugn the evidence of the witnesses in so far as it implicated the defendants.

391.  During trial most of the officers involved in the taking of the record of interview and the non-prejudicial statements were called as witnesses in order to be cross-examined.

392.  It was suggested that firstly the defendants had been suggested to the witnesses by the Immigration officers as the participants in these conspiracies.

393.  I note this was denied by all the officers concerned and also by the civilian witnesses.  There was no evidential substance to this allegation.

394.  Secondly, it was suggested that the non-prejudicial statements were simply copies of the records of Interviews.  The contents of the Records of Interview and the non-prejudicial statements were usually highly similar however that is to be expected given that the two statements covered the same ground.

395.  I found this had no influence on the veracity or reliability of the evidence that was subsequently given in court by the civilian witnesses.

The effect on the civilian witnesses evidence of their decision to be prosecution witnesses

396.  In this case the prosecution decided to call the bogus spouses as witnesses. The civilian witnesses were extensively cross-examined about the effect this had on their evidence.  That they were giving evidence in anticipation of receiving a reduction of sentence.  A number of the witnesses said that they were either ignorant of the benefit they may receive or that they did not expect to receive any benefit.

397.  It was said that this was a significant factor in assessing their credibility and reliability.

398.  It is of course necessary to consider all factors including any benefit received by a witness in giving evidence when assessing the weight to be given to their evidence.

399.  I considered this when assessing the individual charges.

Findings in relation to the Charges

400.  It is common ground that the determination of the charges depends on the credibility and reliability of the respective “bogus spouses”.  Their evidence if accepted is sufficient to prove each necessary element of each charge.

401.  The court is required to determine the issue of credibility and reliability respectively and separately in respect of each “bogus spouse” (witness).  If the witnesses evidence satisfies the burden and standard of proof then a conviction would inevitably follow.

402.  The defence case for both defendants relies solely upon a thorough going attack on these witnesses credibility and reliability with no contrary case being asserted to the witnesses.

403.  They advance the following propositions in respect of each witness. Firstly that the core issue of a reliable identification cannot be made by any of the witnesses.  This is because of the following especially when the R v Turnbull 1977 QB224 are considered that: a honest witness may not be a reliable witness.

404.  The people identified by the witnesses were not known to the witnesses prior to the events covered by their respective charges.

405.  The descriptions given by all the witnesses in their statements (ROI and NPS) were given only in very general terms.

406.  In all cases there is a substantives time lapse between the last time the civilian witness saw the middlemen and the time when they attended the photo identification parades.  In the case of PW11 it was 5 years.

407.  That all the witnesses were willing participants in their crimes and were get to be sentenced and may well tailor their evidence on the basis that this would assist in their own sentencing exercises.

408.  It was also said that the witnesses were dishonest, unreliable or lying that their evidence was inconsistent or the result of recent invention or inherently improbable. 

409.  I found that in the case of all these witnesses the submission that they had enhanced or recently invented part of their evidence was unfair.

410.  The witnesses were all subject to lengthy and highly detailed questioning which involved a complete retelling of their accounts with a search for detail.  Once obtained these details were used to allege a recent invention.

411.  The witnesses have given at least two previous accounts in their ROI’s and NPS statements.  These statements were in broadly similar terms and were meant to cover the essential details.

412.  The examination of the witnesses took them upon a much more detailed examination of the facts.  To them say that the matters surfaced were recent fabrications is simply unfair.

413.  The witnesses tried to answer as best they could.  However, the cross-examinations particularly by D1 were lengthy, confused, unclear, and often left the witnesses thoroughly confused.  I found there was little I could take from them in terms of evidential value.

414.  Nevertheless, in respect of all the witnesses there were some matters that required examining to establish if the burden and standard of proof could be effectively discharged by their evidence.

415.  In particular, it was a common feature of all their evidence that they were all participants in these crimes along with the “middlemen” that on its own meant that their evidence must be approached with caution and that some evidence of an independent form that is independent of the witness should be sought.

416.  Secondly, all the witness relied upon an identification by photo identification to implicate a particular defendant.

417.  These identifications were all made at some distance in time from the events of the charges.  Again to discharge the burden and standard of proof it would be necessary to identify some other supporting evidence.

418.  I will deal with how this issue is resolved in respect of each charge herein: In resolving these charges.  The central issue was always one of credibility and reliability.  In respect of the cross-examination and submission this often led to an agonisingly detailed analysis of these witnesses with the aim of surfacing discrepancies improbabilities, items not in statements bits of pieces of close analysis of matters not central to the issues.  The inconsistencies that arise can exist with wholly truthful witnesses.  My object was to bring to bear a realistic approach based on the central features of this case.  Bearing in mind also that although the defence has no burden of proof upon them.  That where evidence is unaddressed, where no contrary version is promulgated where that is not forthcoming then conclusions of fact may be drawn that are adverse to the defendant.  In general, I found that the submission in relation to alleged lies and inconsistencies were futile and based upon lengthy confusing examinations of the witnesses.  I did not find that any of the civilians witnesses lied or were coached by Immigration officers.  In fact, I found them to be honest witnesses trying to recall events as best they could.

The charges resolution of the Issues and verdicts

Charge 4 PW11 LAI CHING YI

419.  The prosecution rely upon PW11 to prove a conspiracy with D1 and D2 to contract a bogus marriage with HE LIANG MING.

420.  The events of the charges occurred in 2016.  PW11 was arrested on 6 April 2018 and gave an ROI on the same day she pleaded guilty to this charge on 1 August 2018 and gave an NPS on 20 August 2018.

421.  The photo identification took place on 11 March 2019.

422.  The evidence of PW11 was challenged on the basis that the original offer by jenny of 600-700,000 HKD payment was different from the amount actually offered and paid.

423.  I did not consider this impinged her evidence, this is a negotiation to commit a criminal conspiracy.  It is very different from discussing a contract.  In any event PW11 needed the money and would likely have accepted any figure.  It was said it was not reasonable to continue after the payments jenny promised were not meet.  I did not consider this to have been a relevant factor for PW11.

424.  PW11’s identifications were criticized reference was made to parts of her evidence and descriptions of D1 and D2 and the photo identifications were at least two years later.

425.  Also reference was made to PW11’s mobile phone and that it was out of order when she was arrested so she could not produce her contacts with the middlemen whereas in her statement she said she had charged her phone.  This was a minor discrepancy it had no effect on my assessment of the witness.

426.  Of relevance was the PW11 said she saw photographs of D1 and D2 on the day of her arrest.

427.  The interviewing officer said no photographs were shown to her. However, this was information volunteered by the witness and the court cannot ignore this factor.

428.  In this case I found PW11 to be a truthful witness.  Her account of both D1 and D2’s involvement was unshaken in cross-examination and was evidence of their knowing involvement in the conspiracy particularised.  In respect of the identifications of D1 and D2 the effect of the showing of the photographs must be considered.

429.  In D1’s case there is no supportive evidence from an independent source that directly implicates him furthermore the period of observation was much shorter than in D2’s case.

430.  In respect of D2 there is the TMR record that shows D2 crossed this border shortly after PW11 on 16 January 2017.

431.  This evidence is both supportive and independent.  They crossed the border within six minutes of each other.  PW11 had said they passed the channel roughly together.  This timing supports that evidence.  It is a short period of time.  There is no explanation other than that of PW11 as to why they should cross the border so closely together.  In the absence of an explanation.  The only rational conclusion is that D2 was together with PW11 as part of the conspiracy outlined by PW11 in her evidence.

D1

432.  I therefore conclude that in the case of D1 the effect of possibility of a displacement effect together with the shorter period of observation and the fact that the witness is a conspirator means that for him on this charge the standard of proof beyond reasonable doubt cannot be met and he will be acquitted of Charge 4 whereas for.

D2

433.  The effect of PW11’s evidence of a 30-hour observation together with the TMR mean that the possibility of error or a mis-identification from the displacement effect can be discounted.

434.  The evidence is probative of guilt and proves the case against D2 beyond reasonable doubt D2 will be convicted on Charge 4.

Charge 5: D1 and D2 jointly witness LEE YIU MING (PW15)

435.  On Charge 5, it is the prosecution case that PW15 conspired with D1 and D2 to contract a bogus marriage with a Mainland female LIN Hailing.

436.  PW15 was arrested on 14 March 2018 gave an ROI on the same day and on 11 April 2018.

437.  PW15 pleaded guilty to the Charge on 8 August 2018.  He gave an NPS on 17 August 2018.

438.  I was urged to reject PW15’s evidence which if believed provided clear evidence of D1 and D2’s involvement in this offence.

439.  It was said there were inconsistencies between PW15’s two ROI’s and his testimony in court.

440.  The main inconsistency revolved around who accompanied PW15 on his meeting with Ms LEE on 20 November 2017 at Langham Place and who accompanied him and D2 when they went to Fujian on 23 November 2017.  Originally he said other than D2 accompanying him to Fujian no-one accompanied them.

441.  In his second ROI he mentioned the presence of a friend one HON Cheuk Fai.

442.  In evidence he mentioned another friend a LEE Wing Hang who came to Fujian with him.

443.  PW15 accounted for the difference by saying that he had been told by the interviewing officer that as the persons were not involved he did not need to mention them.  The interviewing officer CHAN Ho Yin (PW64) said that he had never said this.

444.  I did not consider this in any way impugned PW15’s testimony.  It is always a possible reaction of a witness when challenged to say someone else told him to say something or not say something.  In this case who may have come with PW15 other than D2 is simply not a relevant detail it did not require to be resolved.

445.  Much was made of whether PW15 had deleted the call logs on this phone, had lost his phone, whether he had shown the phone to Immigration.

446.  I considered PW15 had become confused during the relentless questioning in this area.  However, as no phone numbers were ever produced or referred to in evidence I did not consider it necessary to resolve the issue.

447.  I was also inferred to PW15 alleged had poor memory I noted the submission.  However, PW15 was perfectly clear about D1 and D2’s role and involvement and remembered these clearly.  That was the significant and relevant evidence.  Not the less significant matters referred to in submission.  In any event the matters referred to did not affect the substance of PW15’s evidence against D1 and D2.

PW15 identified both D1 and D2 by way of photographic identification

448.  PW15 saw D1 when he took him to the law firm originally PW15 said this was for 4 to 5 hours he shortened the period later.  This was the only time he saw him.

449.  PW15 saw D2 originally on 22 November he called her the “fat woman”.

450.  They met on the evening of the 22 November and travelled together to Fujian a journey which took 12 hours she had breakfast and to a Government building.

451.  Whatever PW15 may have said about D2.  It is known that PW15 and D2 crossed that border together on 22 November 2017 at 2011 hours at the Lok Ma Chau control point.  This is of course wholly consistent with PW15’s evidence and supports PW15’s identification with clear independent evidence.

452.  This evidence is unanswered with any explanation as to how this could have occurred unless under in the way evidenced by PW15.

453.  The only reasonable conclusion to be drawn is that it was D2 accompanying PW15 on the way to the bogus wedding.

454.  I found PW15 to be a truthful witness and reliable in so far as he implicates D1 and D2 in the conspiracy.

455.  I consider in the case of D2 the presence of independent verification of part of the evidence permits the court to reach the certainly necessary for a criminal conviction on this charge.  D2 is convicted on this charge.  This level of certainly also exists in respect of D1 who was in PW15’s presence for although a shorter period of time together.  I note the absence of evidence of movement records in D1’s case.  However, PW15 gave clear evidence of D1’s involvement and identity.  In D2’s case, this is verifiable.  I consider this helps to strengthen the identification of D1.  I am satisfied to a criminal standard of D1’s involvement, he is convicted of the offence.

Charges 6, 15, 16 & 17: D1 only

456.  These charges relied upon the evidence of a civilian bogus spouse WONG KAI MAN (PW19) who conspired with ON GOR/D1 and female GAO DAN to enter into a bogus marriage and to obtain services for the birth of GAO DAN’s baby in Hong Kong to register the babies birth and obtain a re-entry permit for the baby.

457.  PW19 had pleaded guilty on 13 September 2018.

458.  PW19’s evidence was criticised on the basis of inconsistency and discrepancy with earlier statements.

459.  I bore this in mind.  I also noted PW19 said he gave evidence not for any particular advantage in the sentencing process PW19 had contracted an earlier bogus marriage in respect of an earlier marriage so he was familiar with the procedural aspect.  This also led to some confusion in PW19’s presentation of his evidence.

460.  Overall I was of the view that PW19 was generally truthful and reliable and that he was capable of conducting a valid identification.

461.  However, it was the case that PW19 was a participant in the offence.  He was giving evidence of events in 2014/15 I considered that to reach a state of criminal certainly that some independent evidential verification would be necessary.  None was forthcoming therefore I dismissed those Charges 6, 15, 16 & 17 accordingly.

Charges 7, 11, 12 and 13: against D1 only

462.  In these charges the prosecution case is that CHOI WAI KIT (PW21) conspired with D1 (ON JAI) to contract a bogus marriage to LIU XIAOCHEN and to obtain the services of Precious Blood Hospital for the birth of LIU’s child.

463.  The events took place in 2015, PW21 was arrested in 2018 and pleaded guilty on 30 October 2018.  He made photo identification of D1 in February 2019.

464.  The defendant maintained that PW21’s evidence should not be accepted especially the identification evidence.

465.  They considered the fact that the case was many years old before an identification took place made any subsequent identification unreliable.

466.  I found it was not necessary to resolve these issues in any detail.

467.  I found PW21 to be a truthful witness and generally reliable, although again somewhat confused in his recollection.

468.  However, I considered that in all these charges faced by the defendants that the absence of reliable independent confirmation meant that the burden and standard of criminal proof could not be achieved.

469.  No such confirmation assisted in relation to these charges.

470.  I accordingly dismissed Charges 7, 11, 12 and 13.

Charges 8 and 14: D1 only

471.  Charge 8 alleges that D1 (AH ON) conspired with CHENG WAI LUN (PW24) and others to contract a bogus marriage with a Mainland female LIU CUIHUA and in Charge 14 to conspire to obtain the services of Union Hospital to provide services for LIU in respect of the delivery of her baby.

472.  PW24 had some previous convictions relating to drugs, resisting police and offensive weapons.

473.  PW24 was arrested on 30 January 2018 and gave an ROI on the same day. He pleaded guilty on 24 October 2018.

474.  On 31 October 2018 he gave an NPS on 27 February 2019.  PW24 made a photographic identification of D1.

475.  The events of the charges relate back to 2014.

476.  As to D1’s involvement PW24 had said D1 had been introduced by HUNG JE. D1 had instructed him to apply for the Certificate of absence of marriage and had taken him to the lawyer in Mongkok.

477.  D1 had accompanied him to Fujian (see TMR).

478.  In Fujian, PW24, D1 and LIU had discussed the procedures for the bogus marriage.  They had returned to Hong Kong together.  He said D1 and he has returned together for the actual marriage ceremony.  D1 was present at the ceremony arranged documents, procedures and gave D1 RMB93,000.

479.  D1 had arranged for PW24 to accompany LIU across the border and then to arrange the booking at the Union Hospital.

480.  The defendant made many criticisms of PW24’s evidence.

481.  Firstly, it was said that PW24 had called this man AH WA originally only altering it to AH ON during the NPS.

482.  Also that certain names and sums of money were different in the statements and evidence i.e. $80,000 and HUNG JE.  That the way in which his reward was paid and where and how he obtained his marriage certificate were confused and differed between his accounts in a statement and evidence.  These were details upon which a civilian witnesses could easily become in confused when relentlessly and confusingly questioned also given the fact that events occurred many years previously.  They did not cause me to doubt the witnesses credibility or reliability.

483.  I noted that PW24’s evidence on where or how many times he travelled to the Mainland differed from the actual record.  The details are not however of such significance as to disbelieve or doubt PW24.  Because it is undoubtedly the case that D1 and PW24 travelled together to the Mainland together on 16 February 2014.  There can be no doubt about this.  This is not a co-incidence or an accident.  The only explanation offend is by PW24 that this was as part of the conspiracy to form a bogus marriage.  There is no alternative explanation for this.

484.  This record clearly supports the identification dispels any consideration that PW24 has misrelated his evidence in relation to D1’s involvement as a member of the conspiracy in Charge 8 and Charge 14.

485.  I was satisfied PW24 was truthful that he was reliable in so far as he evidenced D1’s involvement in these two conspiracies.  I am satisfied PW24 is not influenced in his evidence by an expectation of a reduced sentence. Furthermore, that his identification of D1 is wholly reliable and is confirmed by the TRM to a criminal standard.  D1 is convicted of Charges 8 and 14.

Charge 9: D1 and D2 jointly

486.  In Charge 9, D1 and D2 are said to have conspired with CHAN SHUI CHUNG (PW28) to contract a bogus marriage with a Mainland female CHEN QUIYING.

487.  PW28 had previous convictions for dangerous drugs.

488.  The events took place in 2017.

489.  PW28 said D1 took him to Tsim Sha Tsui and Mongkok to deal with the Certificate of absence of marriage and also to the law firm.

490.  PW28 went to Fujian with D2 crossing the border together at 0633 hours on 29 June 2017.

491.  PW28 said he had been shown photographs of ON JAI (D1) and WAN JE (D2) on two occasions before the photographic identification parade.

492.  It was submitted that PW28’s evidence was not credible or reliable due to firstly inconsistencies with his previous statement.

493.  Examples were given they were largely inconsequential matters such as whether a payment was in HKD or RMB or whether a name was mentioned in an advertisement.  Who was presented their first meeting and whether a spouse name was mentioned.  I found that they did not significantly impinge upon PW28’s evidence.

The precise method of the payment by installments was also raised again this is an area when recollections many differ

494.  In fact none of the matters mentioned in submission caused me to doubt the reliability and credibility of the witness and I do not proposed to list all the matters raised.

495.  I did not find this imprecision as to who attended the first two meetings or the way in which money was paid invalidated his evidence.

496.  It was said his descriptions of ON JAI and WAH JE were vague and imprecise.  However, he is a civilian witness and his description match how such people would make a description.

497.  PW28 said of D2 that he would recognize her.

498.  There was evidence from PW28 that he had been shown photographs of D1 and D2 during the investigation process.  PW28 said this has occurred on two occasions before the photographic identity parade on 25 March 2019.  He could not identify which officer had done so.  The interviewing officers denied showing the photographs.  However, PW28 did not say it was them so it was always a live possibility that PW28 had been shown those photographs PW28 did say he was aware he might benefit in his own sentence by giving evidence.

499.  Overall PW28 presented as a truthful witness credible and believable. He was a participant in these offences and could gain by giving evidence so it was necessary to regard his evidence with caution.  Furthermore there was evidence of the showing of photographs which led to the risk of a displacement effect.  That was particularly relevant to D1’s case where the observation was for a shorter period and no independent confirmatory evidence existed.

500.  I found that in D1’s case that the absence of confirmatory evidence and the risk of a displacement effect leads to the conclusion that the evidence cannot discharge the standard necessary for a criminal conviction and D1 will be acquitted of this charge.  This is especially so as the risk of displacement existed.

501.  However, in D2’s case there is undisputed evidence that D2 and PW28 crossed the border together on 29 June 2017 at 0633 hours via the Lok Ma Chau spur line control point.  This accords with PW28’s evidence.  It is unchallenged and unexplained.

502.  The only rational conclusion is that PW28 is entirely correct in his evidence that D2 was the “middlemen” accompanying him to Fujian for the purpose of assisting him to contract the bogus marriage to CHEN QIUYING.  It also displaces any risk arising act of the possibility of a displacement effect.

503.  D2 will be convicted on this charge.

Charge 10: D1 and D2

504.  It is the prosecution case that Mr YEUNG WAI (PW32) conspired with D1 and D2 to contract a bogus marriage with a Mainland female YU YAMING.

505.  The events of this charge occurred in early 2016.

506.  D1’s involvement according to PW32 was to assist in obtaining the Certificate of absence of marriage in TST, D2 accompanied PW32 to the law firm in Mongkok and accompanied PW32 to travel to Fujian.  This being evidenced in the TMR as on 23 February 2016 PW32 and D2 departed Hong Kong via the Lok Ma Chau Control point at 1351 hours.

507.  The main thrust of the criticism of PW32’s evidence was that it dealt in a greater detail of evidence than his earlier statements.

508.  This is hardly surprising given the length and detail of the cross-examinations to which he was subject.

509.  It is simply not rational to demand highly detailed explanations and then say that these details are not in original statements which were taken to establish the essential facts.

510.  I found this style of advocacy, submission unconvincing and contrived.

511.  It assumes the witness knows the kind of detail he should furnish.  It is simply irrational to expect this from a civilian witness who has no real experience of giving evidence.  The “omitted details” did not in any way lead me to consider that PW32 was inconsistent or unreliable.

512.  It was argued that PW32 had misidentified the middlemen D1 and D2 as his evidence was confused.

513.  PW32 spent less time with D1.  However, she was with D2 for lengthy periods of time and crossed the border with her it is simply not possible that the identification is mistaken in respect of D2.

514.  I was referred to various inconsistences in PW32’s evidence, none of which made me doubt PW32’s evidence about D1 or D2’s involvement.

515.  Reference was made to the taking of PW32’s NPS and what were said to be contradictions between the statement taker and PW32.

516.  I saw nothing significant in this evidence witnesses often have a different recollection of how a process unfolded.  These were not details central to the case.

517.  I bore in mind all the submissions raised by the parties in respect of PW32’s descriptions of the parties, the fact he was a party to the crimes, the variations in his statements and oral evidence.  I considered that these matters did not shake the essential truthfulness and reliability of his evidence.  However, at the end of the consideration of all the evidence I found that the case was fully established against both D1 and D2 to the criminal standard required.  In respect of D1 although a relevant TMR did not exist it was unassailable that the identification of D2 was supported by D2’s TMR.  I found that this also supported the identification of D1 in the circumstances of this case.  I found the evidence in respect of D1 and D2 fully supported a conviction on this charge of both D1 and D2.

Charge 18 against D1 only

518.  In this conspiracy charge Ms LAM KUN YING (PW35) contracted a bogus marriage with mainland male LUO ZHENXIAN.  D1 as ON JAI is said to have assisted him.

519.  PW35 was arrested on 14 March 2018 and gave an ROC on the same day.  She pleaded guilty on 5 September 2018.  She is as yet not sentenced.

520.  She gave an NPS on 10 September 2018, she identified D1 at a photographic identity parade on 13 August 2019.

521.  The events of the charge occurred in 2016.  PW35 is said to have gone to the Immigration office in Tsim Sha Tsui with ON JAI (D1) to apply for a Certificate of absence of marriage at D1’s request.  D1 paying her for this, D1 is said to have accompanied PW35 to the lawyer office in Mongkok.

522.  On 23 August 2016, PW35 and D1 travelled to the mainland via the Lo Wu control point crossing the border respectively at 08:47 hrs PW35 and 08:45 hrs.

523.  D1 assisted in the solemnization of the marriage and coached PW35 how to deal with inquiry by Hong Kong Immigration.

524.  D1 and PW35 returned to Hong Kong together the same day.  PW35 at 17:12 hrs and D1 at 17:11 hrs. (see TMRs)

525.  The defence claimed that PW35’s evidence should not be accepted as with other witnesses extensive reference was made to marginal evidential matter. She was said to have referred to matters in cross-examination which were not in her statements on examination in chief.  This is hardly surprising when witnesses are cross-examined in a repetitive, prolix and unclear way.  They often volunteer further information.  It is not evidence of inconsistency or lying its simply the result of lengthy complicated cross-examinations that confuse witnesses.  Most of the matters were marginal in credibility.  Such as who originally introduced her to HUNG JEI was it her boyfriend or someone else.

526.  How many times she met with HUNG JEI or ON JAI (D1) was raised.  This surfaces as a result of her first attempt at a bogus marriage being abandoned.  She had returned the original payment and eventually agreed to the marriage the subject of the charges.  Her then boyfriend also wanted to conduct a bogus marriage, however, at that time the demand was for female to be bogus spouses not males. All these details which were at best marginal were explored in harrowing lengthy detail.  It is not surprising there were inconsistencies I found the questioning difficult to follow.  It is hardly surprising the witness gave the answers she did.

527.  Far from impugning her credibility, I found her evidence on these matters realistic convincing and made her appear most truthful.

528.  What cannot be countered with PW35’s evidence that it was arranged for her and ON JAI (D1) to go to the mainland together.  Her evidence of description of ON JAI (D1) is adequate but it is incontrovertible that they were in each other company when they went to the mainland she had every opportunity to see D1, correctly identified him and was confirmed in her connection with him by wholly independent evidence.  She said D1 helped her paid her and accompanied her.  She never retreated from any of this.  In fact, the evidence against D1 on this charge is over whelming and unanswered.

529.  The attempts to paint her as unreliable are unconvincing and I rejected them.  I accepted PW35’s evidence of D1’s involvement he is convicted on this charge.  Her testimony presents complete involvement of D1’s guilt upon this charge.  I accept this evidence and convict D1 of the charge.

Charge 19 against D1 only

530.  The prosecution say that a conspiracy existed with Ms KWOK WING YUK (PW37) who conducted a bogus marriage with a mainland male Mr ZHUANG PINNENG with the assistance of D1 (ON JAI).

531.  PW37 did have previous convictions for dishonesty ie, theft and possession of dangerous drugs.

532.  PW37 was arrested on 19 April 2019.  She gave her ROI on the same day. She pleaded guilty to the present charge on 14 August 2019.  She is as yet not sentenced.

533.  Her NPS was given on 22 August 2019.

534.  At a photo identification parade, she identified D1 on 28 October 2019.

535.  The event of this charge occurred in 2015.

536.  In essence Ms Kwok became acquainted with ON JAI (D1) in early 2018. She was offered up to HK$70,000 to conduct a bogus marriage.

537.  D1 took PW37 to apply for a Certificate of absence of marriage record and then to the law firm in Mongkok.  D1 gave PW37 money.

538.  D1 and PW37 travelled to Guangzhou together, see TMR on 4 February 2015 at 03:30 hrs, D1 and PW37 crossed the border together at the Lo Wu Control Point.

539.  Then went to Shanwai together.  D1 assisted and payed further monies to PW37.

540.  PW37 was subjected to extensive cross-examination on the basis she was unreliable and inconsistent.  Reference was made to the fact that her ROI and NPS were the same.  That she had referred to ON JAI (D1) as a man in both her evidence and her statement.  That her description of ON JAI was not detailed.

541.  These criticisms do not take into account that one is dealing with a civilian witness not a professional witness and such issues are to be expected.

542.  PW37 said she had been shown a photo of D1 ON JAI on her arrest so it was necessary to consider the risk of a displacement effect.

543.  Some other details were referred to such as the fact that was no mention in the statements that PW37 went to Guangzhou to meet the bogus spouses parents that she had stayed overnight with the bogus spouses and had massaged together.  In fact, these details made PW37 more convincing not less convincing.  I was also aware and bore in mind PW37’s previous convictions and that she stood to benefit by giving evidence, nevertheless she was a convincing witness and entirely truthful and reliable.

544.  Her identification was made many years later and there was the risk of a displacement effect.  However, it is not disputed that D1 and PW37 were together when they travelled to the mainland for the bogus marriage.  This means that in the absence of any other explanation (of which there is none).  Then the only possible conclusion is that PW37 is entirely correct in her identification of D1 as the middleman ON JAI who accompanied her and also had helped and accompanied her earlier in Hong Kong.

545.  I can see no other conclusion the evidence is clear and compelling.  D1 is convicted on Charge 19.

Charge 20 against D2 only

546.  The prosecution relied upon PW41 SO CHEUK LING to establish this charge.  PW34 contracted a bogus marriage with LIN SHAOHUA.  D2 was a middleman.  PW34 is aged 34.  She has 3 criminal convictions for dangerous drugs.  She was arrested and made a ROI on the same day.

547.  PW41 pleaded guilty.  She is as yet not sentenced.  PW41 identified D2 on 30 November 2020 at a photographic identity parade.

548.  PW41 said that originally she dealt with a Ms Lee as the “middleman”. D2 was introduced and was with Ms Lee when they went to the law firm later. PW41 was accompanied by D2 to go to Fujian for the bogus marriage.

549.  D2 took her to the civil affairs bureau in Fujian and introduced the bogus spouse to her.  D2 told PW41 to exchange personal information with the bogus spouse.  PW41 gave D2 her ID card and home visit purpose.  D2 paid PW41 her reward.

550.  It is undisputed that on 11 November 2018.  PW41 and D2 departed Hong Kong via Lok Ma Chau at 06:53 hrs.  They obviously left together as evidenced by PW41.  This evidence is neither disputed or explained otherwise than the evidence of PW41 that D2 was acting as “middleman” and helping her contract the marriage to the bogus spouse in the mainland.

551.  In her defence D2 offered no alternative explanation for these facts.  I was referred to the usual account of supposed inconsistencies, additions alleged lies and supposed false or poor memory of the witness reference was made to her recollection of the investigation process by Immigration department.  This is hardly surprising for civilian witnesses it is a confusing and disorienting process.  To receive detailed examination on a marginally relevant topic, two years later it is hardly surprising the witness expressed uncertainty.

552.  She certainly remembered the bogus marriage and D2’s accompanying her to the mainland.  This was not even challenged.

553.  She could not recall certain details and was not sure of the date of travel to the mainland but this could be independably verified by the Immigration Authorities.

554.  There were some marginal details concerning her meetings and the payment of money that PW41 was uncertain about but the fact of her marriage and D2’s involvement were not matters she failed to member or was confused about.

555.  PW41’s identification is challenged.  However, the TRM record proves independently the strength and accuracy of her identification notwithstanding that a number of years had elapsed before the photographic identification took place.

556.  PW41 and D2 were together for a lengthy period of time.  Her identification has independent verification.

557.  I bear in mind PW41’s criminal record and that she had her own interest to serve in testifying.  I found her a truthful and reliable witness whose evidence as to D2’s involvement is independently verified and which completing parts was against D2.

558.  D2 is convicted accordingly on Charge 20.

559.  Summary of convictions and acquittals:-

Convictions:
Charge 4	D2 convicted
Charge 5	D1 ) convicted
	D2 )
Charges 8 & 14	D1 convicted
Charge 9	D2 convicted
Charge 10	D1 ) convicted
	D2 )
Charge 18	D1 convicted
Charge 19	D1 convicted
Charge 20	D2 convicted
Acquittals:
Charge 4	D1 acquitted
Charge 6, 15,16 & 17	D1 acquitted
Charge 7, 11, 12 & 13	D1 acquitted
Charge 9	D1 acquitted