HKSAR v.LIN YONGZHONG AND OTHERS

DCCC409/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 409 OF 2012

--------------------

--------------------

-------------------------

Reasons for Sentence

-------------------------

1. In this case, there are 7 charges involving 3 defendants.  All of them plead guilty to Charge 7 which is for the offence of conspiracy to obtain services by deception, contrary to section 18A of the Theft Ordinance, Chapter 210, and sections 159A and 159C of the Crimes Ordinance, Chapter 200.  In addition, D1 pleads guilty to Charge 1, D2 pleads guilty to Charge 3, and D3 pleads guilty to Charge 5.  Each of these charges is for the offence of using a forged travel document for the purpose of Part II of the Immigration Ordinance, contrary to section 42(2)(b) and punishable under section 42(4) of the Immigration Ordinance, Chapter 115.  The 3 defendants also face Charges 2, 4 and 6 respectively.  Each of these charges is for the offence of making a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance, Chapter 115.  In light of the defendants’ pleas, the prosecution decides not to proceed with these charges.  These charges are therefore left in the court file and shall not be proceeded with unless with leave of the court.

Facts

2. All defendants are nationals from the People’s Republic of China (“PRC”) living in the Fujian Province.  They wanted to go to Australia to obtain employment.  A Taiwanese known to them by the nickname of “Lo Chan” agreed to traffick them from Fujian into Australia via Hong Kong at the cost of RMB$200,000 per person.  They would start making payment by instalments when they succeeded in obtaining employment in Brisbane.

3. Sometime before 30 March 2012, each defendant gave two photographs of himself, together with his valid PRC passport, to Lo Chan.  Later, Lo Chan returned to each of them his PRC passport with a visa for entry into Thailand, together with an airline ticket for travel on board a Cathay Pacific flight from Hong Kong to Bangkok on 30 March 2012.  None of the defendants intended to go to Bangkok. They just wanted to get into the restricted area of the departure hall at the Hong Kong International Airport where they would collect forged Taiwanese passports and boarding passes for travel on board a Qantas flight to Brisbane in the evening. 

4. On 30 March 2012, the 3 defendants travelled by ferry from Shekou to Hong Kong International Airport.  They used their valid PRC passports to enter Hong Kong as transit passengers en route to Bangkok.  For that purpose, they were allowed to stay in the restricted zone of the departure hall of the Hong Kong International Airport. 

5. Inside the departure hall, pursuant to the instructions given by Lo Chan, each defendant collected from a location near Gate 21 one forged Taiwanese passport and a boarding pass for Qantas flight QF98 to Brisbane that evening.  These forged passports each bore the photograph of one of the defendants, but the personal particulars in the passports did not relate to any of them but to three Taiwanese males who arrived at Hong Kong earlier that day from Kaohsiung onboard Dragonair flight KA453.  Each defendant had examined the forged passport that bore his photographs and realized that the personal particulars in the passport did not relate to him.

6. Although each defendant was aware that the Taiwanese passport bearing his photograph was a forgery, they armed themselves with the forged passports, together with the boarding passes for boarding QF98, with a view to boarding the plane to continue with the illegal journey.  I was told in mitigation that the defendants had not actually presented the forged passports or the boarding passes to the airline staff because they were intercepted by officers of the Hong Kong Immigration Department before they could do so.  Upon questioning by the officers during departure immigration examination, each defendant tendered the forged passport bearing his photograph, and falsely claimed to be the person whose details appeared in the passport.  They claimed to have come from Kaohsiung, and produced boarding passes bearing the same name as in their respective forged passport for boarding KA453 and QF98. 

7. The defendants were all arrested.  Each of them admitted the offences under caution.

8. Investigations reveal that the three Taiwanese nationals whose personal particulars appeared in the three forged passports travelled from Kaohsiung to Hong Kong on 30 March 2012 and entered Hong Kong through the immigration channel at Hong Kong International Airport.  However, all of them departed Hong Kong through the Lowu immigration channel on the same day.  Qantas Airways confirmed that reservation had been made in the names of these three Taiwanese nationals for the flight QF98 from Hong Kong to Brisbane on 30 March 2012.

Criminal record

9. All defendants have a clear criminal record.

Personal and family background

10. D1 is 41 years old, married, living with his wife, son aged 17, daughter aged 6, father aged 80 and mother aged 77.  He worked as a farmer and earned about RMB$1,200 per month.  He had received only primary one education in the mainland.  His two children are still studying.  His parents are retired farmers.

11. D2 is 42 years old, married, living with his wife, daughter aged 13, son aged 11 and father.  He was a farmer but also took up part time job in construction site if work was available. 

12. D3 is 47 years old, married, living with his wife aged 45, son aged 20, daughter aged 18, and his two parents both aged 85.  His son is unemployed.  His daughter is studying.  His parents are retired farmers.

Mitigation

13. Learned counsel for D1 and D3 informed this Court that the two defendants committed the offences for economic reasons.  They just wanted to earn a little bit more in Australia so as to improve the family living condition.  Both of them received little education and had little social experience as they had been farmers in Fujian for the whole of their life.  Hence they did not know details of the scheme, and they acted at the direction of Lo Chan.  They did not know the serious nature of the offences and their consequences. They were sole breadwinner of their families.  Their parents were old with poor health.  It was said that D3’s mother was suffering from ill health.  A medical book was produced on the health condition of D3’s mother, but the handwriting was illegible, and counsel was unable to assist this Court with its contents. Counsel said that, according to D3, his mother was suffering from cancer all over her body, but D3 was unable to provide further details.  Counsel stressed that D1 and D3 pleaded guilty at the earliest opportunity, that they gave no thought to the scheme and had been acting like puppet of Lo Chan because of their limited education and life experience, and that they were very remorseful and had been very cooperative with the authorities.  He pleaded for maximum leniency for each defendant.

14. Learned counsel for D2 submitted that D2 was hard pressed by economic burden.  He was the sole breadwinner of the family.  His wife was suffering from heart problem, and his father was now seriously ill because of terminal cancer.  Because of their health problem, a lot of money was spent on medical expenses.  D2 therefore had to commit the offence with a view to getting better pay.  Counsel pleaded for leniency for D2 on the ground that he pleaded guilty and had been cooperative with the authority.

Reasons for sentence

15. The 3 defendants were participants in a conspiracy for human trafficking in which they were to be trafficked to Australia for obtaining employment.  Pursuant to this illegal scheme, the defendants committed the offences they are now convicted of.  Even though they were not the traffickers but the persons to be trafficked, their offences were still very serious for a number of reasons. 

16. First, the offences involved sophisticated planning and arrangement with international dimension.  Second, the defendants sought to undermine not only the immigration laws of Hong Kong but also those of other jurisdictions.  Third, they sought to travel on aircraft when they were not authorized to do so.  Fourth, they used Hong Kong as a gangway for illegal immigration and tarnished the international reputation of Hong Kong.  Fifth, they might cause inconvenience to lawful visitors from Hong Kong because immigration authorities of other countries might feel sceptical of them even though they are holding lawful travel documents. 

17. In addition, the principle of comity of nations requires Hong Kong to punish and deter illegal immigration.  Hong Kong as a key airport in the world must be seen to tackle these offences in such a way so as to deter their commission.

18. For these reasons, unless there are special circumstances in the commission of the offences or there are exceptionally strong mitigating factor which must be rare, the only appropriate sentencing option is imprisonment even if the offender pleads guilty and has a clear record.

19. I have considered very carefully each plea in mitigation.  In my view, this is just one of the ordinary cases where a poor mainlander committed these offences with a view to earning more money overseas for the benefit of his family. Counsel for D1 and D3 submitted that neither D1 nor D3 had participated in hatching the illegal scheme and they were just being persuaded by Lo Chan to go on this illegal adventure.  It was said that they acted just like puppet of Lo Chan. There is no evidence supporting this allegation.  Furthermore, as conceded by counsel, both of them knew the framework of the illegal scheme.  In my view, D1 and D3 were well aware that forged passport would be used to conceal their true identities in order to go to Australia, or else they would not have provided their photographs to Lo Chan.  They must also be aware of the scheme of switching identities with the Taiwanese because they had only visa and air tickets to go to Bangkok when their true destination was Brisbane, so that someone must have to get the boarding passes for them. In any event, they had promised to pay a huge sum of money in return for the services to be provided by Lo Chan.  Even if they did not know the details of the scheme, it must be the case that they had just left the execution of the scheme entirely to Lo Chan, which was precisely what they were paying for.  If that was the reason why they did not have knowledge of the details of the scheme, that in my view will not amount to mitigation. 

20. All in all, I find that there are no exceptional circumstances in the case, and there is simply no ground not to impose a term of imprisonment on any of the defendants.

21. As to the quantum of sentence, I have been referred to the sentences imposed by His Honour Judge Browne in Case No. DCCC732/2010 and HKSAR v He Wenyou [2009] 3 HKLRD 445.  I am of the view that the facts of this case were virtually identical to those in He Wenyou.  I shall therefore adopt the same starting points as the Court of Appeal in that case, i.e. 27 months’ imprisonment for the using false travel document charge and 32 months’ imprisonment for the conspiracy charge.

22. Each defendant committed the offences because of economic reason.  This is only an explanation why they committed the offences, but it is not mitigation.

23. Each defendant claims that their parents are old with poor health.  D2 claims that his father is suffering from terminal cancer.  D3 also claims that his mother is suffering from cancer all over her body.  However, there is insufficient medical proof to substantiate their allegations.  Furthermore, it is quite clear that at the time when the defendants left home and embarked upon this illegal venture, they would have deprived themselves of any chance to go home to take care of or to see their ill-health or even dying parent because it is inconceivable that they could go back to their homes within short period of time.  I shall not reduce their sentence on this ground.

24. It is quite clear that the defendants will serve a term of imprisonment, and this will cause hardship to their families.  However, this is not a ground to lower their sentences.  The defendants must be well aware that if they were caught for committing these offences, they were at risk of losing the opportunity to support their families for some time, and yet they ignored or belittled the risk.

25. The only valuable mitigating factor is their guilty plea.  They are entitled to be given the usual one-third discount.  There is no ground for suspending the operation of the prison term.

26. I agree that the sentences to be imposed on each defendant should run concurrently.

27. For these reasons, the defendants are sentenced as follows: