HKSAR v. CHAN HUNG HO

English Translation – 英譯本
HCMA 523/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 523 OF 2012

(ON APPEAL FROM STCC NO. 3475 OF 2012)

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Reasons for Judgment

1.  The appellant was charged with three counts of conspiracy to defraud, contrary to common law and sections 2(3) and 6 of the Criminal Jurisdiction Ordinance, Cap. 461, Laws of Hong Kong, and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. He pleaded guilty to all the charges and was sentenced to 18 months’ imprisonment by the principal magistrate.

(1) Charge (1): 12 months.

(2) Charge (2): 12 months.

(3) Charge (3): 12 months.

Three months of each of the terms of imprisonment for charge (2) and charge (3) were to be served consecutively to the terms for other charges, making a total sentence of 18 months.  The appellant appealed against his sentences.  I dismissed the appeal after hearing.  The following are my reasons.

Facts

2.  The respondent’s representative Public Prosecutor Ms. Rosa Lo arranged the facts in the form of tables, which I adopt and set out below:

“3. On three occasions the appellant, through arrangements made by a middleman, engaged in illegal activities commonly known as ‘bogus marriages’ with different female partners. The details are as follows:

Charges	Dates of offence	Dates of bogus marriages
Charge 1	Between a certain day in 2004 and 24 March 2005	25 June 2004
Charge 2	Between a certain day in 2006 and 20 August 2008	1 November 2006
Charge 3	Between a certain day in 2008 and 27 September 2010	One day in 2008

4. The 1^st and the 3^rd marriages were solemnized in the Mainland, while the 2^nd marriage was solemnized in a law firm in Hong Kong.  The middleman offered rewards of different amounts to the appellant:

Charges	Rewards offered by middleman	Amounts which appellant admitted having received
Charge 1	$10,000	HK$2,000
Charge 2	HK$8,000	HK$1,200
Charge 3	HK$2,500	RMB300

5. On each occasion the other party took away the marriage certificate related to that occasion; and on each occasion the appellant provided the other party with duplicate copies of his HKSAR identity card and home visit permit card in order to assist his female partners to apply for ‘endorsements for visiting relatives’ and forsettling in Hong Kong.  Subsequently, these three women did come to Hong Kong on the strength of the ‘endorsements for visiting relatives’.”

Background and mitigating factors

Reasons for Sentence

3.  The principal magistrate took into account the appellant’s background and his submission in mitigation, and referred to two cases, namely HKSAR v Lai Kon-fai, HCMA 1029/1998 and HKSAR v Chen Wuchang, HCMA 251/2007.  For each offence, he used 18 months’ imprisonment as the starting point, and then reduced it by 1/3 on account of the appellant’s pleas of guilty and remorse, arriving at 12 months’ imprisonment.  The principal magistrate considered that the appellant had on three occasions and at different times, for the purpose of gaining rewards, helped other people to obtain a special right, i.e. the right to visit Hong Kong.  Having had regard to the totality principle, he ordered that three months of the terms for charge 2 and charge 3 were to run consecutively to the terms for the other charges, making a total of 18 months’ imprisonment.

Grounds of appeal

4.  The appellant stated in his letter to the court that he agreed that the offences he committed in the present case were very serious offences and that he regretted very much for what he had done.  He also agreed that the prison terms imposed in this case were correct.  He said that he had not committed any offence since his last transgression of the law in 1989 up to the present case.  He claimed that after his father passed away in 14 January 2010, he became a voluntary worker of the Buji Neighbourhood Committee of Longgang District, Shenzhen, and had been working four days each week until he was remanded in custody in July 2012 for this case.  In his letter he gave his “opinions about reduction of sentence”.  He wished that he could as soon as possible make contributions to society in return.

5.  Subsequently, when the appellant was before me, he submitted that in HKSAR v Yeung Ka Chun [transliteration of 楊家俊] HCMA 58/2012 (an authority submitted by the Respondent) the appellant pleaded not guilty and in the end he was sentenced to only 18 months’ imprisonment for two charges concerning “bogus marriages”, while he pleaded guilty but the sentence he received was also 18 months’ imprisonment.  For this reason, he complained that his sentence was too severe.

Respondent’s reply

6.  Ms. Lo’s written submission essentially said that the sentences imposed by the principal magistrate were proper.

7.  Apart from the two authorities which the principal magistrate referred to, Ms Lo also cited Yeung Ka Chun.  She submitted that in the present case the starting point of 18 months’ imprisonment which the principal magistrate adopted for each charge was appropriate, and that the appellant had received 1/3 discount for his guilty pleas, resulting in 12 months’ imprisonment for each charge.  Finally, on the basis of the totality principle, the appellant was sentenced to a total term of 18 months’ imprisonment.  The respondent averred that the approach of the principal magistrate was correct.

My considerations

8.  No sentencing guidelines have been laid down for conspiracy to defraud cases involving bogus marriages.  In a number of magistracy appeals concerning cases of a nature similar to that of the present case the appellate court held that it was appropriate to use 18 months as the starting point in the case of a conviction after trial.  Relevant cases (all of them unreported) included the two cases referred to by the principal magistrate (namely Lai Kon-fai and Chen Wuchang) and the above-mentioned Yeung Ka Chun; in addition there were HKSAR v Chui Man-yi, HCMA 342/2007; HKSAR v Liu Qianqing, HCMA 103/2007; HKSAR v Li Fengxia, HCMA 937/2007; HKSAR v Leung Wing Yi [transliteration of 梁詠儀], HCMA 550/2008; HKSAR v Wei Bixiao, HCMA 507/2009; HKSAR v Kong Man-lung Leslie, HCMA 731/2009; HKSAR v Cheng Hing-keung, HCMA 462/2011 and HKSAR v Li Dik Tin [transliteration of 李滌滇], HCMA 341/2011.

9.  In Yeung Ka Chun, which the appellant cited, the defendant was convicted after trial of two charges concerning bogus marriages and was sentenced to 18 months’ imprisonment for each charge.  The magistrate ordered that the two terms of imprisonment should run concurrently, therefore the overall sentence was 18 months.  As Deputy High Court Judge Anthea Pang said during the appeal hearing of that case, by ordering that the two terms were to run concurrently the magistrate gave the defendant “extraordinarily lenient treatment”.

10.  Furthermore, the Court of Appeal had repeatedly stressed that the fact that lighter sentences were passed in other cases did not constitute a reason for reducing the sentence in the case under consideration, and that what the court should consider was whether the sentence passed was proper (see HKSAR v Abdallah [2009] 2 HKLRD 437; HKSAR v Chow Tak Fuk, CACC 428/2004 and HKSAR v Lam Ying Kit, CACC 24/2009).

11.  In this case, it was correct for the principal magistrate to use 18 months as the starting point for each charge, and the total sentence of 18 months’ imprisonment was also proper.  Indeed, the appellant agreed that the sentences were correct.  The appeal lodged by the appellant was without merit and was dismissed accordingly.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.