HKSAR v. LEE SHINWON AND OTHERS

CACC 27/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 27 OF 2011

(ON APPEAL FROM DCCC NO. 732 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon McWalters J (giving the judgment of the Court) :

Introduction

1.  At the hearing of this appeal we dismissed the applications by D4 and D5 for leave to appeal their convictions and indicated we would hand down our reasons at a later date together with our judgment on D3 ‑ D5’s appeals against sentence.  This we now do.

2.  The criminal conduct involved in this appeal is human trafficking.  Five persons were charged as a result of their participation in a scheme to traffick two of them into Australia on a Cathay Pacific Airways flight leaving Hong Kong for Sydney on 23 April 2010.  In this judgment they shall be referred to as D1 – D5. The scheme was for 3 persons to fly from Seoul, Korea to Sydney via Hong Kong.  In Hong Kong a substitution was to take place and two of the people who travelled from Seoul were to be replaced by the two persons being trafficked.  The persons being trafficked would be able to pose as the two persons who had flown from Korea as they had been given false Korean passports in the names of these two persons.  The boarding passes for the Hong Kong/Sydney sector had been issued in Seoul and these were given to the persons to be trafficked.  It was intended that the two genuine travelers would wait until the plane for Sydney had departed Hong Kong and then approach ground staff and claim that they had lost their boarding passes for that flight.  In this way they would be able to obtain entry into Hong Kong and in fact did so.

3.  At trial D1 and D2 were the persons being smuggled, D3 was the person in charge of the group, at least in so far as the journey to Australia was concerned, and D4 and D5 were the genuine travelers whose places on the Hong Kong/Sydney flight were being taken by D1 and D2.

The Charges

4.  The Charge Sheet contained 5 Charges.  D1 was charged, on her own with :

(i)  making a false representation to an Immigration Assistant, namely that she was departing Hong Kong for Guangzhou contrary to s 42(1)(a) and (4) of Cap 115;

  (Charge 1 on the Charge Sheet)

(ii)  possessing a forged travel document, namely a Korean passport in the name of D4 contrary to s 42(2)(c)(i) and (4) of Cap 115;

(Charge 2 on the Charge Sheet)

and with all the other accuseds with :

(iii)  conspiring to obtain services, namely air travel services, by deception, namely by representing themselves to be the persons named on the boarding passes in their possession and presenting forged passports contrary to s 18A of Cap 210 and ss 159A and 159C of Cap 200.

(Charge 5 on the Charge Sheet)

D2 was charged, like D1, on his own, with :

(i)  making a false representation to an Immigration Assistant contrary to s 42(1)(a) and (4) of Cap 115;

(Charge 2 on the Charge Sheet)

(ii)  possessing a forged travel document, namely a Korean passport in the name of D5 contrary to s 42(2)(c)(i) and (4) of Cap 115;

(Charge 4 on the Charge Sheet)

and with all the other accuseds with :

(iii)  Charge 5.

D3 – D5 were charged only in respect of Charge 5 (together with D1 and D2).

The Pleas

5.  D1 and D2 pleaded guilty to the charges they faced other than Charge 5. This was accepted by the prosecution and so Charge 5, in respect of D1 and D2 only, was ordered to be left on the file and not proceeded with without the consent of the court.

6.  D3 pleaded guilty to Charge 5.

7.  D4 and D5 pleaded not guilty and were convicted of Charge 5 after trial.

The Sentences

8.  For both D1 and D2 the trial judge adopted the same starting point of 3 years imprisonment on each charge to run concurrently and for D1 reduced it to a final sentence of 2 years imprisonment.  For D2 the judge reduced the sentence to 1 year 9 months imprisonment on each charge, to run concurrently. He gave D2 an additional 3 months discount to reflect his finding that D2 only became a knowing participant in the scheme at a late stage.

9.  For D3 the judge adopted a higher starting point of 4½ years and discounted it for the plea of guilty to 3 years imprisonment.  The reason the judge adopted a higher starting point for D3 was because he viewed D3 as the most culpable of the defendants and as being not far behind the mastermind.

10.  For both D4 and D5 the trial judge adopted the same starting point of 4 years imprisonment and that was the sentence he imposed on D4 who is a 39 years old single lady working as a golf caddy.

11.  For D5 the judge allowed a discount of 4 months and sentenced him to 3 years 8 months imprisonment.  D5, who is 33 years old and single, suffers from a psychiatric condition known as Tourette’s Syndrome which manifests itself in the form of uncontrollable vocal tics like hissing, grunting or coughing.  With such a condition, it was the view of the psychiatrist who examined D5 that he would have a more difficult time in custody than other defendants and this was why the judge allowed D5 a four months reduction in sentence.

12.  For D1 to D3 the judge relied upon an agreed Summary of Facts as the factual basis for sentence.  For D4 and D5 he, of course, relied on the evidence at trial.

The Appeals

13.  At the conclusion of the trial D1 appealed his sentence but has since abandoned his appeal.  D2 did not appeal.

14.  D3 has appealed his sentence only.

15.  D4 appeals both her conviction and sentence, but in relation to her appeal against conviction she appears in person.  She is legally represented only in respect of her appeal against sentence.

16.  D5 appeals both his conviction and sentence.

The Trial of D4 and D5

17.  Much of the prosecution case was not disputed.  Both D4 and D5 were interviewed three times and the voluntariness of these interviews was not contested.  There were two documents of admitted facts, one of which, rather curiously, contained many facts relating to the defendants’ cases which could not have been known to the prosecutor.  Notwithstanding this rather unusual course both D4 and D5 gave evidence and D4 also called her brother to testify. The effect of the prosecutor admitting much of the defence case meant, of course, that the trial judge had to accept those facts when otherwise he might have been skeptical of them for he certainly did not find either D4 or D5 to be credible witnesses.

The Prosecution Case

18.  In essence the facts that emerged at trial were that on 23 April 2010 D4 and D5 travelled on a Cathay Pacific Airways flight from Seoul to Hong Kong together with D3 who was the person offering them a free holiday.  On arrival in Hong Kong they passed through the transfer gate as they had boarding passes for an onward Cathay Pacific flight to Sydney, Australia.  Once inside the departure area D4 and D5 surrendered their boarding passes to D3 who gave them to D1 and D2.  In accordance with instructions given to them by D3, D4 and D5 waited for half an hour after the flight to Sydney had departed and then approached a Cathay Pacific staff and reported to her the loss of their boarding passes. They then ultimately entered Hong Kong and stayed at a hotel where D3 had previously made reservations for them.

19.  Meanwhile back at the boarding gate for the Sydney flight the scheme began to unravel.  An alert Cathay Pacific staff became suspicious of D1’s forged Korean passport and contacted Immigration.  D1 was detained and when it became known that D3 was accompanying D1, D3 was questioned but was allowed to board the plane and depart Hong Kong as there was nothing wrong with his passport.  Staff soon realized that D2 was travelling with D1 and so D2 was taken off the plane.  Both D1 and D2 then cooperated with authorities and revealed that their genuine passports had been discarded in a nearby rubbish bin.  These passports were successfully retrieved.

20.  By the time the plane landed in Australia D3’s involvement in the scheme must have become known for the Australian authorities denied D3 entry to Australia and he was returned to Hong Kong where he was arrested.

21.  D4 and D5 remained in Hong Kong until 25 April 2010 and were arrested as they were trying to catch a return flight to Korea.

22.  Amongst the facts that D4 and D5 admitted were the following :

“On 23 April 2010 :

- D5 met D3 at Inchon Airport, whereupon D5 handed over his Passport to D3 for checking-in by automatic means: after D3 returned his Passport, D3 further told D5 that accommodation had been arranged for D4 and D5’s stay in Hong Kong;

- D4 met D3 and D5 at Inchon Airport, whereupon D3 took D4’s Passport for checking-in, later returning it to D4 together with a boarding pass for the flight to Hong Kong: D3 promised to pay for D4’s food and hotel accommodation in Hong Kong;

- D3 kept both boarding passes issued at Inchon Airport in the respective names of D4 and D5 for the flight from Hong Kong to Sydney later the same day.

- D3, D4 and D5 took Cathay Pacific Airways flight CX 411 to Hong Kong.

After flight CX 411 arrived in Hong Kong late afternoon 23 April :

- after disembarking from the flight, D3 gave D4 and D5 the boarding passes issued in their respective names at Inchon Airport for the onward flight to Sydney, and, instructed them both to follow him through a security check-point to the departure gate for the Cathay Pacific Airways flight CX 111 to Sydney;

- on arriving at or near to the departure gate, D3 took back the 2 boarding passes from D4 and D5, giving them instructions that they should wait 30 minutes after his departure before reporting that they had lost the boarding passes, in order to be allowed to enter Hong Kong;

- D3 then brought an unknown man over to D4 and D5, whom D3 instructed to give D5 an envelope later found to contain HK$5,000.00;

- D3 left D4 and D5 to take flight CX 111 to Sydney, following which D4 and D5 waited 30 minutes as instructed by D3 and then reported the loss of the 2 boarding passes to Cathay Pacific staff: D4 and D5 were then assisted to pass through Immigration control at the Airport and enter Hong Kong, where they stayed in the hotel accommodation arranged for them by D3 on nights of 24 and 25 April 2010, namely, at the Harbour Plaza Metropolis hotel.

On 26 April 2010, D4 and D5, having purchased return flights to Inchon using part of the HK$5,000.00 contained in the envelope referred to above, were stopped and arrested at Hong Kong Airport when they sought to take their flight back to Inchon.”

The Defence Case

23.  Both D4 and D5 gave evidence and D4 called her brother to testify for her.  Both D4 and D5 claimed that they were innocent dupes of D3.  They had no idea that persons were to be smuggled into Australia and that forged copies of their passports and their boarding passes for the Sydney flight were to be used to achieve this.  They claimed that they did not know of the Sydney flight or that they would have to surrender the boarding passes for this flight until D3 told them of this in Hong Kong.

The Reasons for Verdict

24.  The trial judge found that the claims by both defendants that they did not know they were participating in a conspiracy to traffic persons to Australia to be incredible.  He found that they had lied in respect of specific answers on key matters that they gave in their records of interview and in their evidence in court.  For example D4 was unable to explain how she was able to get into the departure lounge for the Sydney flight at Hong Kong Airport. D5 in his records of interview and evidence in chief said that it was at Inchon Airport, Seoul that he became aware of the Sydney flight and that D3 would travel on it.  He also became aware then that he and D4 would not be accompanying D3 and that D3 would keep their boarding passes for this flight.  D5 said this made him suspicious.  However in cross-examination he repudiated what he had said in his records of interview and examination in chief.  He now claimed that the first time he became aware of the Sydney flight was in Hong Kong when he got off the Seoul flight.

25.  Given that the defendants’ explanations were inherently incredible, that they contradicted themselves on key issues and that on their own case they engaged in criminally dishonest actions, it is hardly surprising that the trial judge rejected their evidence.

26.  Having rejected the defendants’ evidence the judge went on to consider whether, in the absence of any direct evidence implicating D4 and D5 in the conspiracy, he could infer their participation.  He correctly directed himself that he could only do so if such an inference was the only reasonable one that could be drawn from the facts.

27.  Even on the defence case the defendants admitted they engaged in illegal conduct from the moment they presented themselves at the transfer gate at the airport.  The questions were whether they knew why they were being called upon to act as requested and if so when they acquired this knowledge.

28.  In respect of the first question the judge inferred that they were co-conspirators but as to when they joined the conspiracy he made no explicit finding of fact. However it appears from his statements at paragraph 125 of his Reasons for Verdict that he concluded that they joined the conspiracy no later than at the airport in Seoul.  At paragraph 125 of his Reasons for Verdict he said :

“As I have already stated, this conspiracy was well-planned. The conspirators had to be sure that the persons holding the boarding passes to be used by the illegal emigrants would be prepared to make false implied representations when they proceeded through the transit area with boarding passes for Sydney. A strategy would also have to be prepared as to how such persons would leave the departure lounge after the boarding passes had been taken from them. For the conspiracy to succeed, they would have to lie to airline and immigration personnel about the Sydney boarding passes.”

The Appeals Against Conviction

29.  As previously mentioned the only defendants seeking leave to appeal their convictions are D4 and D5 and D4 is not legally represented for the purpose of her application.  In support of her application she has tendered to the court a letter.  Counsel for D5 relied upon his perfected grounds of appeal and written submission and had nothing to add to them.  As we heard D5 first we shall deal with his appeal before D4.  Much of what is said in respect of D5’s appeal also applies to D4’s appeal which is a continuing assertion of her innocence and a claim that she was duped by D3.

D5’s Appeal

30.  D5’s grounds of appeal against conviction essentially come down to an argument that there was insufficient evidence before the trial judge to enable him to conclude that the only reasonable inference and a compelling one was that D5 was a party to the conspiracy.  D5 argues that an inference equally available on the evidence was that D5 was the innocent dupe of D3 and the judge therefore erred in drawing the adverse inference that he did.  Each of D5’s grounds of appeal is a variant of this theme.

31.  In his first ground of appeal D5 relies on his explanation of what D3 told him to show how the real purpose of the trip was concealed from him.  D5 argues that if it is accepted that D3 misled him and that he, D5, believed what he was told, then the time when D5 became aware that there were tickets for an onward flight to Sydney is irrelevant.  D5 says that the judge, by focusing on the issue of when D5 became aware of the Sydney flight, was distracted from the real issue of whether the prosecution had proven beyond reasonable doubt that D5 was a knowing participant in the conspiracy and, in this respect, whether the circumstantial evidence, in the absence of any direct evidence, allowed only of the adverse inference that the judge ultimately drew.

32.  D5 also argued in his second ground of appeal that there was insufficient evidence to enable an inference to be drawn that he intended the conspiratorial agreement pleaded in the charge to be carried out and to that end knowingly participated in it.  In support of this contention D5 refers to the evidence of he and D4 remaining in Hong Kong after they had reported their boarding passes lost as evidence that all they wanted from the scheme was an opportunity for free sightseeing in Hong Kong.

33.  D5’s final ground of appeal was that there was insufficient evidence to enable the inference to be drawn that D5 knew that his and D4’s boarding passes were to be handed over to D1 and D2 and that his and D4’s passports had been forged for use by D1 and D2.  In support of this argument D5 says that insufficient weight was given to D5’s good character and his explanations in his records of interview and his evidence because the judge had wrongly focused on the credibility of D5 solely in relation to the issue of when D5 became aware that there were tickets for a Sydney flight.

D4’s Appeal

34.  D4 had no perfected grounds of appeal filed on her behalf and before us she did not add to what was contained in the letter she wrote to the court.  In her letter, which she wrote in the Korean language and which was translated for our benefit, she explained that she was only a simple‑minded person of limited education and little experience of the world.  All her travel experience was with others where she had no involvement in the travel arrangements.  She mentioned that she had no knowledge that her passport had been forged and was unaware that her boarding pass for the Sydney flight was to be used by another.  She also said that if she had any suspicion that a forged copy of her passport and the boarding pass were being used to smuggle someone to Australia she would not have entered Hong Kong but would have straightaway returned to Korea.  She points to the fact that she stayed in Hong Kong for several days as a tourist as supporting her claim that she was deceived and taken advantage of by others.  Together with this letter she also handed up a photograph of herself taken whilst sightseeing in Hong Kong as support for her contention that her conduct and demeanor all point to her behaving as a normal tourist.

Discussion of the Appeals Against Conviction

35.  It is clear that the trial judge focused on the time when D4 and D5 became aware that they would have to surrender their boarding passes to D3 for a number of reasons.  Firstly, D5 gave conflicting evidence on this issue so it became important to resolve it in order to come to a view on D5’s credibility. Secondly, because the prosecutor had admitted background facts relating to how D4 and D5 came to join D3 on the flight to Hong Kong and because both defendants asserted they did not know of the Sydney flight until they arrived in Hong Kong, the judge was forced to focus on this issue.  Once he rejected D5’s evidence he still had to be satisfied that the prosecution had proven beyond reasonable doubt that D5 was a co-conspirator with D3 rather than his victim as D5 claimed.  The earlier in time that D5 became aware of what D3 required of him, the easier it is to infer that D5 had joined the conspiracy. Even D5, in his first record of interview, admitted he became a little suspicious of D3 when he learnt at Inchon airport that there was a Sydney flight for which D3 would keep the boarding passes.  Far from distracting the judge from the real issue, this issue assisted the judge in coming to a conclusion on whether D5 was a co-conspirator as charged.

36.  The fact that D4 and D5 remained in Hong Kong is at most neutral evidence.  Had they returned to Korea they would have immediately brought themselves under suspicion.  Their decision to stay in Hong Kong is entirely consistent with them being part of the conspiracy.  

37.  The circumstantial evidence that enables the inference of guilt to be drawn is essentially two-fold and all comes from undisputed evidence.

38.  First there is the evidence of D4 and D5’s conduct and this is also relevant to D5’s complaint that insufficient regard was had by the trial judge to D5’s good character.  On their own account both D4 and D5 say they agreed to involve themselves in serious criminal conduct and they did so without, it seems, any meaningful qualms or reservations.  Here I am referring to D4 and D5 agreeing to proceed through the transfer gate, surrender their boarding passes and then lie about having lost them.

39.  It is unclear quite why D4 and D5 had to pass through the transfer gate and enter the departure area of Hong Kong airport.  But presumably it was because the boarding passes for the Sydney flight had to be processed through a machine at the transfer gate in order to be properly validated.  This requirement meant that the willing cooperation of D4 and D5 was crucial to the success of the scheme.  In order for the scheme to work D4 and D5 had to agree, and on their own case did agree, to :

(i)  pretending to the persons at the transfer gate that they were intending to board the flight shown on their boarding passes;

(ii)  once in the departure area surrendering their boarding passes; and

(iii)  lying to airline ground staff and Immigration officers that they had lost their boarding passes.

This is not conduct in which a person would normally consider taking part, especially when the request to engage in such conduct came from someone who was, for all intents and purposes, a complete stranger to that person.

40.  By this conduct, D4 and D5 revealed themselves to be persons who were not of good character – to be persons who were willing to lie on matters that would impact upon aviation security and immigration.  They could not but have appreciated that what they were doing was not only dishonest but that it was very serious and likely to be criminal.  It is inconceivable that D4 and D5 would not have realised that in lying to Hong Kong Immigration Department personnel in order to gain entry to Hong Kong they would be committing a criminal offence. Their conduct in complying with all of D3’s instructions, is strong evidence of their intention to participate in the conspiracy and to assist in it being carried through to a successful conclusion.

41.  This brings me to the second body of circumstancial evidence ‑ namely the nature of the scheme.  As already pointed out, the success of the scheme depended on the assistance of D4 and D5.  Had they, on finding out in Hong Kong what was required of them, refused to play their role, the whole scheme would have collapsed.  It is common sense that persons involved in carefully planned criminal conduct do not leave the success of their enterprise to chance.  Indeed they do all they can to eliminate chance from affecting the successful implementation of their plan.  D4 and D5 were not just two of many conspirators, they were the key conspirators for without their willing participation the plan could not have had any prospect of success.

42.  In the circumstances of this case the compelling and only reasonable inference was that D4 and D5 were co-conspirators as charged.

The Appeals Against Sentence

43.  In the course of mitigation the trial judge was referred to two cases to assist him with sentence.  They are HKSAR v He Wen You [2009] 3 HKLRD 445 and HKSAR v Cheng Kwong Chung & Ors CACC 536/2001.  These cases and others have also been referred to us.  It is argued by counsel that these cases support their contention that the judge adopted too high a starting point in respect of each of their clients.

44.  The case of Cheng Kwong Chung also involved human trafficking and seven defendants were prosecuted.  D1, D3 and D6 pleaded guilty and D2, D4 and D7 were convicted after trial and sentenced to four and a half years, three years and thirty-two months respectively.  Although D2, D4 and D7 appealed, only D2 and D7 appealed their sentences.  D2 was convicted of a number of different offences and his total sentence was made up by making one and a half years imprisonment of one pair of offences consecutive to concurrent sentences of 3 years imprisonment for another pair of offences.  D2’s role within the scheme was more significant than D7 who was one of the two persons being trafficked. In understanding these sentences it is important to note that only one incident of trafficking was involved and so notwithstanding that D2’s sentence was composed of sentences for other offences the sentence of four and a half years was considered by the Court of Appeal as appropriate for the underlying conduct ‑ namely a plan by a group of people to traffick two mainlanders into the United States of America.

45.  Chronologically, the next case relied on, by counsel for D4 and D5, is HKSAR v Hung Kong Nam & Anor CACC 346/2006.  In this case the applicants were convicted of a number of offences in respect of one incident of human trafficking of three mainlanders to the United Kingdom.  The total sentences imposed were 4 years and four and a half years on the respective applicants.  Counsel in the present case seek to draw comfort from the low sentences imposed in respect of the various individual offences in this case.  But this ignores the reality that these individual offences reflect an underlying course of criminal conduct and it is that conduct which the Court of Appeal was considering when it determined whether the total sentence was manifestly excessive.  This is made clear at paragraph 46 of the judgment where the Court of Appeal referred to its earlier comments on the inadequacy of some of the individual sentences and said :

“However we do not propose to interfere with the individual sentences as in our judgment the totality of sentence properly reflects the criminality of the 1^st applicant.”

46.  The final case is He Wen You.  This was also a human trafficking case with a similar factual background to the present case and to the Cheng Kwong Chung and Hung Kong Nam cases.  This case endorsed the sentencing approach adopted in Cheng Kwong Chung and emphasised the need for deterrent sentences.  It did, however, say that there was a difference in culpability between the person being trafficked and those who plotted or carried out the scheme.  In this case the applicant was the person being trafficked and so the Court of Appeal adopted a starting point of 32 months, as opposed to the three years adopted by the trial judge.

47.  What an analysis of this case law reveals is the sentencing policy behind this type of offence and the sentencing goal, namely deterrence, that must be reflected in the sentence imposed.

48.  The policy considerations that underly a court’s approach to sentencing for these cases were enunciated by this court in the cases of Cheng Kwong Chung and He Wen You.  In Cheng Kwong Chung the Court of Appeal said at paragraph 51 of its judgment:

“We take the view that offences such as these are very serious. They involve the exploitation of persons on the Mainland, for substantial sums, exploitation which is no doubt financially crippling to the emigrant and his or her family and which puts the emigrant at continuing risk. Beyond that, and importantly, the offences deliberately seek not only to undermine Hong Kong’s laws but also the immigrations laws of other jurisdictions, and to enable persons to travel on aircraft when they are not authorised to do so. It hardly needs to be emphasised that conduct of this kind is to be treated by our courts with a firm hand, not least when air security and international immigration controls carry an importance greater than ever before.”

And in He Wen You the Court said at page 449, paragraph 9 of its judgment:

“ We must point out that a higher starting point is applicable to this kind of cases, which clearly involve sophisticated planning and arrangement. Making use of Hong Kong’s position as a hub of communications, offenders assist illegal immigrants in entering a third country. By means of a fraudulent scheme, offenders help illegal immigrants enter the restricted area of the Hong Kong International Airport, where they then use false boarding passes to board flights bound for a third country. Upon arrival in that country, they will use false identity documents for gaining entry into that country. These activities will obviously tarnish Hong Kong’s international reputation. Furthermore, as a result of those activities, immigration authorities of foreign countries will become wary of visitors from Hong Kong even when they are holding lawful travel documents, which means that visitors from Hong Kong will have to suffer a certain degree of inconvenience when they enter those countries. Severe, deterrent sentences must therefore be imposed for those offences.”

49.  There is also the comity of nations consideration which was adverted to by Tang VP in HKSAR v Yim Kim Ping & Ors CACC 67/2009 at paragraph 19 where he described it as:

“…. a mutual responsibility shared by all nations to punish and deter those who tried to cross international borders with forged travel documents.”

50.  It is because of the very importance of these policy considerations that the Court of Appeal has emphasised that the sentencing goal is deterrence.  The sentences have to be sufficiently severe so that persons who may be approached to assist in such schemes, as happened to D4 and D5 in the current case, will realise the seriousness of the crime and the seriousness of the consequences to them should they be detected.

51.  In He Wen You the Court of Appeal also accepted the need to distinguish between the culpability of the person being trafficked and those organizing, assisting in and profiting from the trafficking.  What the case law does not reveal is the laying down of a strict sentencing tariff of the kind that this court has endorsed for drug trafficking offences.  Although the sentencing judge must have regard to the three matters just mentioned he has, nonetheless, considerable discretion to determine an appropriate starting point for each offender in the case before him.  However, he does also need to bear in mind the desirability of achieving consistency in sentencing and this will especially be relevant when he is dealing with criminal conduct whose factual matrix is closely similar to these Court of Appeal authorities.  This principle in fact prompted the Court of Appeal in the He Wen You case to impose a sentence on the applicant that was the same as those passed in the Cheng Kwong Chung case.

52.  However, He Wen You is not the last word on the matter.  Mr. Lui for the respondent, in his helpful submission, referred to two other Court of Appeal authorities where a starting point of 4½ years imprisonment had been endorsed.  They are Yim Kim Ping and HKSAR v Teo Zi Yang & Anor CACC 52/2010.

53.  In the present case the judge distinguished between each of the defendants.  In descending order of culpability his assessment starts with D3 who was the organizer of the group followed by D4 and D5 who were brought in to assist in the implementation of the scheme and ends with D1 and D2 who were the persons being trafficked.  His starting points were 4½ years imprisonment for D3, 4 years for D4 and D5 and 3 years for D1 and D2.

54.  Against this backdrop we shall discuss the submissions advanced on behalf of D3 to D5.

D3

55.  The ground of appeal for D3 is that the sentence imposed by the trial judge was manifestly excessive and/or wrong in principle.  In support of this ground, counsel for D3 argued that, based upon the decisions of Cheng Kwong Chung and He Wen You, the trial judge’s starting point of 4½ yearswas too high, and the starting point should have been 32 months.  It is also argued that the judge erred in assessing the culpability of D3, failed to take into account that the conspiracy is a more limited one being only in relation to the use of boarding passes, and erred in rejecting D3’s mitigation that he was acting under the instructions of a Mr. Choi, the true mastermind of the scheme, and, finally that he failed to take into account D3’s good character and community service.

56.  In considering these arguments the starting point must be an examination of the charge to which D3 pleaded guilty.  Although it was a conspiracy to obtain travel services by deception the deception was not, as counsel for D3 contends, limited to simply misusing boarding passes.  The deception is particularized as follows :

“to dishonestly obtain the services flight number CX 111 (‘the said flight’) from Hong Kong to Sydney on the 23^rd April 2010, by deception, namely by the said OH EUNJU [D4] and the said LEE MIN SOO [D5] handing over through the said LEE SHINWON [D3] to the said Zhang Jinlan [D1] and the said Cui Xuezhu [D2] their own boarding passes for the said flight and by the said ZHANG Jinlan [D1] and the said Cui Xuezhu [D2] presenting forged Korean passports in the names of the said OH EUNJU [D4] and the said LEE MIN SOO [D5] for indentity check at the boarding gate for the said flight and falsely representing that the said Zhang Jinlan [D1] and the said Cui Xuezhu [D2] were the holders of genuine and valid Korean passports and boarding passes for the said flight in the names of the said OH EUNJU [D4] and the said LEE MIN DOO [D5]” (The identifying acronyms of D1 – D5 have been added.)

57.  The charge clearly pleads that part of the deception is the use of forged travel documents.  The conspiracy is not, therefore, a limited one and is no narrower, in terms of the conduct it encompasses, than the charges employed in the Court of Appeal decisions on which D3 relies.  All these cases, whatever charge might be employed by the prosecutor, are concerned with punishing the conduct of human trafficking taking place in Hong Kong – conduct which undermines the integrity of Hong Kong’s air travel security and immigration procedures.  The actual details of the human trafficking scheme in the present case are not so significantly different from the schemes in the other Court of Appeal authorities so as to create a meaningful distinction between them.  As previously mentioned for persons who play a substantial role in carrying out such schemes the Court of Appeal has endorsed a starting point of 4½ years imprisonment.

58.  Counsel for D3 takes issue with the characterization of her client by the trial judge as being “not far behind the mastermind”.  But this, with respect, is missing the point and misunderstands what the judge was saying. The judge was not saying that D3 was in fact the mastermind and thereby rejecting D3’s mitigation in respect of the mysterious “Mr. Choi”.  Nor is the 4½ years starting point reserved only for the mastermind.  It is for all those playing a significant role in carrying out the scheme.  The question is, does D3 fall into this category?  The answer to this is that without a doubt he does.  The Summary of Facts which he admitted for the purpose of his plea shows that D3 recruited D4 and D5; he scanned their passports, sent the copies to Mr. Choi by email and stored them on his portable hard disk; he accompanied D4 and D5 to Hong Kong; he transferred their boarding passes for the Sydney flight to D1 and D2; he told D4 and D5 to report the loss of their boarding passes after his, D3’s, departure from Hong Kong and told a stranger to give D4 and D5 some money for expenses.

59.  Given the role that D3 played in the scheme, the starting point was not only justified but was wholly appropriate.

60.  The complaint that D3 was entitled to a further discount for good character ignores a number of points.  Firstly, allowance for good character is included in the 1/3 discount for the guilty plea and something significantly more, sometimes referred to as positive good character, is needed before a further discount can be considered.  Secondly, previous good character normally counts for little in respect of offences which require a strong deterrent element in their sentencing.  Thirdly, this was clearly a carefully planned scheme and D3’s involvement in it would not have been the result of some spur of the moment, out of character, lapse of judgment.  It was a premeditated decision by him. Indeed it could be said that what was required of him in this scheme revealed more of his character than any previous community works in Korea.  In the circumstances of this offence no further discount for good character was warranted.

D4

61.  D4’s only ground of appeal against sentence is that, given her culpability the judge’s starting point of 4 years imprisonment was too high and resulted in a sentence that was manifestly excessive.  In support of this ground D4’s counsel argues that the Court of Appeal authorities lay down a benchmark of 3 to 3½ years for defendants whose participation in a human trafficking scheme is limited to the kind of role played by D4.  Furthermore he submits that the evidence, especially that contained in the admitted facts, showed that D4’s participation in the conspiracy was limited in both scope and time and did not allow of the inference, which the court drew, that D4 knew the full ambit of the scheme before she left Seoul for Hong Kong.

62.  The trial judge accepted that D4’s culpability was less than D3’s, hence the lower starting point.  Nevertheless the judge, correctly in our view, recognized that without D4’s and D5’s willing cooperation this conspiracy would collapse.  They were essential to the conspiracy’s successful implementation. Thus, whilst not the masterminds of the scheme or the leading henchmen of the mastermind, they provided substantial assistance in carrying out the scheme.

63.  As to when D4 and D5 became aware of the scheme the judge concluded that it was sometime before they left Seoul for Hong Kong.  As we have indicated in our discussion of the grounds of appeal against conviction we are of the view that such an inference is a compelling and the only reasonable inference that can be drawn from the nature of the conspiracy.  We decline the invitation to sentence D4 on a factual basis different from that adopted by the trial judge.

64.  That leaves as the only argument the primary one that, given the authorities, the starting point for D4 exceeded the benchmark laid down by the Court of Appeal in the cases discussed earlier.  But an analysis of those cases does not reveal any such benchmark as is claimed.  The He Wen You case was dealing with a defendant who was being trafficked and the court endorsed the starting point of 32 months adopted by the Court of Appeal in Cheng Kwong Chung.  If one looks at Cheng Kwong Chung one notes that the defendant who played an equivalent role to D4 in the current case was the fourth defendant who was sentenced to 3 years imprisonment.  This defendant did not appeal and so the Court of Appeal did not have the opportunity to comment on her culpability or the appropriateness of her sentence.  But this defendant’s culpability was significantly less than D4’s in the current case. In Cheng Kwong Chung, the fourth defendant checked in for a flight and then gave her ticket and boarding pass to another for use in a trafficking scheme.  In the current case D4 did much more.  She had to pass through the transfer gate, and make a false representation to both ground staff and Immigration personnel that she had lost her boarding pass.

65.  In our view the judge was entitled to adopt a higher starting point for D4 than was adopted for the fourth defendant in the Cheng Kwong Chung case and a starting point of 4 years imprisonment cannot be said to be manifestly excessive.

D5

66.  The ground of appeal and submissions in support for D5 are essentially the same as those for D4 and counsel for D5 specifically adopted all that had been said by counsel for D4.  Consequently, the comments we have made in respect of D4’s ground of appeal and submissions apply equally to D5.

Conclusion

67.  For the reasons we have given D3’s, D4’s and D5’s appeals against sentence are dismissed.