HKSAR v. LU YANBO AND ANOTHER

DCCC 264 & 454/2020

[2020] HKDC 990

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 264 & 454 OF 2020

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REASONS FOR SENTENCE

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1.  D1 pleads guilty to one charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance[1] (charge 1); one charge of possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance[2] (charge 2) and three charges of conspiracy to transfer a forged identity card, contrary to section 7AA(1) (b) of the Registration of Persons Ordinance and sections 159A and 159C of the Crimes Ordinance[3] (charges 3, 6 & 7).

2.  D2 pleads guilty to two charges of breach of condition of stay, contrary to section 41 of the Immigration Ordinance (charges 4 & 5); and two charges of conspiracy to transfer a forged identity card, contrary to section 7AA(1) (b) of the Registration of Persons Ordinance and sections 159A and 159C of the Crimes Ordinance[4] (charges 6 & 7).

3.  Full particulars of the offences are set out in the re-amended consolidated summary of facts admitted by the defendants today[5].

4.  In summary the defendants, who were visitors from the Mainland, overstayed.  While overstaying the defendants were part of a syndicate which supplied forged identity cards to enable visitors from the Mainland to illegally work in Hong Kong. 

5.  The conspiracy was uncovered on 9 December 2019 when Customs officers at the Inbound Cargo Examination Building of the Lok Ma Chau Control Point inspected a goods vehicle of “SF Express”. 

6.  Customs officers found a postal envelope (“envelope 1”) containing the two forged identity cards subject of charges 6 and 7.  The receivers name on the envelope was Ng Ka Hoi and the address was Rear Flat, 418-42020 Un Chau Street, Sham Shui Po with a telephone number 6488 6045.

7.  The case was referred to the Immigration Department for investigation. 

8.  The next day, 10 December 2019, SF Express informed the Immigration Department that another envelope (“envelope 2”) addressed to the same receiver had been found. The envelope contained the forged identity card subject of charge 3. 

9.  On the same day Immigration officer Chan called the number 6488 6045 but in vain.  The next day, 11 December 2019, Immigration Assistant Ng arranged to deliver envelope 1.  Immigration Assistant Ng telephoned number 5575 8933 which number had been recorded by SF Express when someone called to check the delivery status.  D1 answered the call claiming to be Ng Ka Hoi and asked Immigration Assistant Ng to call him again when he arrived at 418 Un Chau Street.

10.  On arrival at 418 Un Chau Street Immigration Assistant Ng, disguised as a courier of SF Express, called 5575 8933.  D1 answered the call and requested to meet outside a nearby McDonald’s.  When D1 met Immigration Assistant Ng outside McDonald’s he spoke in Putonghua saying that he wanted to pick up the mail; that his name was Ng Ka Hoi; the telephone number for picking up the mail was 6488 6045 and the address was Rear Flat, 418-42020 Un Chau Street, Sham Shui Po.

11.  Immigration Assistant Ng then revealed his identity.  On being asked to produce proof of identity the defendant produced his Exit-entry Permit for Travelling to and from Hong Kong and Macau.  Enquiries revealed that D1 was an overstayer whereupon he was detained and cautioned. 

12.  Under caution D1 revealed that he was residing at Flat A, 8/F, 418 Un Chau Street and said he was willing to take Immigration officers to his flat.  On arrival D2 and two mainlanders Zhang Xiaomei and Chen Hui, were found inside the flat.  Zhang Xiaomei, whose portrait appears on one of the forged identity cards found in envelope 1, is named as a co-conspirator in charge 6[6].

Breach of condition of stay – overstaying – charges 1 & 4

13.  D1 arrived in Hong Kong on 2 September 2019 and was permitted to remain as a visitor until 6 September 2019.  D1 did not depart Hong Kong as required and had overstayed just over three months when he was arrested (charge 1).

14.  D2 arrived in Hong Kong on 11 June 2019 and was permitted to remain as a visitor until 18 June 2019.  D2 did not depart Hong Kong as required and had overstayed nearly six months when he was arrested (charge 4).

Breach of condition of stay – illegally working – charge 5

15.  Under caution D2 admitted, inter alia, that in November 2019 he met a person called “Jie Fu” who arranged for mainlanders to work in Hong Kong; he ran errands for “Jie Fu” for which he would be paid around $2,000 for successfully helping someone get a job and that he had received around $11,000 from “Jie Fu” for bringing six mainlanders to the workplace.

Possession of a forged identity card – charge 2

16.  On a search of D1’s flat a forged identity card in the name of Ng Ka Hoi, the name of the receiver on the two envelopes, was found from a bag on D1’s bed.  The forged identity card bore the photograph of D1. 

17.  Under caution D1 admitted, inter alia, that he had obtained the identity card from a middleman called “Jie Fu”.

Conspiracy to transfer a forged identity card - charges 3, 6 & 7

D1 (charges 3, 6 & 7)

18.  Under caution D1 admitted, inter alia, that he was working with “Jie Fu” and D2; “Jie Fu” made forged identity cards and then posted them to Hong Kong by SF Express; he was responsible for collecting the forged identity cards and delivering them to D2 who would then deliver them to mainlanders for employment; he would receive RMB3,000 each time and that he was aware the envelopes contained forged identity cards to be used for mainlanders to work in Hong Kong. 

D2 (charges 6 & 7)

19.  On arrest D2’s mobile phone was seized.  Images of the two forged identity cards particularised in charges 6 and 7 were found on the phone.  WeChat messages revealed D2 arranging for the forged identity cards to be made for Zhang Xiaomei and Wang Bangfen, including Zhang and Wang depositing the fee for making the forged identity cards. 

20.  Under caution D2 admitted, inter alia, that he was working for “Jie Fu” and was responsible for finding jobs for mainlanders and bringing them to the workplace.

Mitigation

21.  In passing sentence, I have carefully considered the submissions of Mr Bok and Mr Chan, together with the authorities submitted by counsel[7].

D1

22.  I have carefully considered the oral and written submissions of Mr Bok on behalf of D1, who is 36, married with two children, aged 6 and 15 and who worked as a casual construction site worker on the Mainland[8].

23.  I have read D1’s mitigation letter in which he explains that he came to Hong Kong to earn more money for his family; promises never to do illegal things again and asks for a lenient sentence. 

D2

24.  In passing sentence, I have carefully considered the oral and written submissions of Mr Chan on behalf of D2, who is 29, single and a factory worker.  I take into account D2 is the sole breadwinner of the family and came to Hong Kong to earn medical expenses for his father, who has brain disease and is disabled[9]. 

25.  I have read D2’s mitigation letter in which he expresses his remorse; promises not to break the law again and asks for a lenient sentence so he can return home to look after his father. 

26.  I have also read the letter from Father John Wotherspoon, who helped in obtaining a medical note confirming the illness and disability of D2’s father. 

27.  I take into account that both defendants have clear records in Hong Kong.  This however carries little weight, the commission of offences by visitors being an aggravating feature of sentence.

Breach of condition of stay – overstaying – charges 1 & 4

28.  Taking into account the period of overstay of both defendants was months, I am satisfied a starting point of 3 months’ imprisonment is appropriate.  Giving the defendants full credit for their pleas of guilty reduces the sentence on each charge to 2 months’ imprisonment. 

Breach of condition of stay – illegal working – charge 5

29.  Taking into account the nature of the work undertaken by D2, I am satisfied a starting point of 3 months’ imprisonment is appropriate.  Giving D2 full credit for his plea of guilty reduces the sentence to 2 months’ imprisonment. 

Possession of a forged identity card – charge 2

30.  In HKSAR v Li Chang Li the Court of Appeal held that the sentence upon a plea of guilty for possession of a forged identity card or identity card belonging to another should ordinarily be 12 months, whether or not the offender was lawfully staying in Hong Kong[10] .  D1 having pleaded guilty the appropriate sentence is 12 months’ imprisonment. 

Conspiracy to transfer a forged identity card - charges 3, 6 & 7

31.  Mr Chan refers the court to the Reasons for Sentence in HKSAR v Hon Yin Sang & others where a starting point of 27 months’ imprisonment was adopted for each of three charges of conspiracy to use a forged identity card. The role of D1 in that case, who was an overstayer and who the sentencing judge described as a member of an international forged identity card group, was to pass the forged identity cards to D2, D3 and D4 and accompany them to find a job in Hong Kong[11].

32.  D1 pleaded guilty and was sentenced to 18 months’ imprisonment on each charge and to a total sentence of 20 months’ imprisonment. 

33.  D2, D3 and D4 who used the forged identity cards to obtain employment were sentenced in accordance with the guidelines in HKSAR v Li Chang Li, namely 15 months’ imprisonment on a plea of guilty.

34.   In my view a total sentence of 20 months’ imprisonment is lenient and does not adequately reflect D1’s role in an international syndicate involved in the use of forged identity cards to obtain employment. 

35.  In HKSAR v Baljit Singh the Court of Appeal confirmed a starting point of 3 years and 6 months’ imprisonment for conspiracy to make false instruments.  The role of the appellant was to forward the photographs and personal particulars of non-refoulement claimants who wanted forged identity cards and to collect the forged identity cards after they had been made in China[12]. 

36.  I agree with the comments of the sentencing judge including that the offences damaged the integrity of the identity card system whereby persons use forged identity cards for illegal purposes, such as taking up employment thereby depriving local workers of employment[13].

37.  This echoes similar sentiments expressed by the Court of Appeal in HKSAR v Chan Yip Chi that the use of forged identity documents is serious and takes away job opportunities of local residents thus creating serious social and economic problems[14].

38.  In HKSAR v Chan Yip Chi the applicant was in the business of supplying false instruments, namely an “Acknowledgement of Application for a Hong Kong Permanent Identity Card”, commonly known as a “Temporary Identity Card”.  The false instruments would be used by visitors, who otherwise would not be entitled to seek employment. The Court of Appeal held that a starting point of 3 years and 6 months’ imprisonment was appropriate for each of two offences of possession of a false instrument.

39.  In his additional mitigation Mr Chan submits that the charges in HKSAR v Baljit Singh are more serious, namely conspiracy to make false instruments.  Mr Bok makes the same submission orally in court today.

40.  Whilst making false instruments is more serious than using or transferring a false instrument and attracts a higher maximum sentence, the role of the defendant in HKSAR v Baljit Singh was not that of the maker.  As noted earlier the role of the appellant was to forward the photographs and personal particulars of non-refoulement claimants who wanted forged identity cards and to collect the forged identity cards after they had been made in China[15].   

41.  In the present case the three conspiracies concern three different forged identity cards which were to be used to obtain employment.  The defendants were clearly part of an international syndicate which supplied forged identity cards to visitors from the Mainland so that they could work illegally in Hong Kong. 

42.  On the evidence before the court the role of D1 is limited to collecting the forged identity cards and passing them to D2 whereas D2 not only arranged for the forged identity cards to be made but was also responsible for finding jobs for the mainlanders and bringing them to the workplace.  I am satisfied a higher starting point is appropriate for D2 to reflect the difference in the roles of D1 and D2. 

43.  I am satisfied a starting point of 3 years and 3 months’ imprisonment is appropriate for D1 on charges 3, 6 and 7 and a starting point of 3 years and 6 months’ imprisonment is appropriate for D2 on charges 6 and 7. 

44.  Giving the defendants full credit for their pleas of guilty reduces the sentence for D1 on each of charges 3, 6 and 7 to 2 years and 2 months’ imprisonment and for D2 to 2 years and 4 months’ imprisonment on charges 6 and 7. 

Totality

45.  In considering totality of sentence I have taken into account the co-operation of both defendants[16].

D1

46.  In HKSAR v Chan Yip Chi the Court of Appeal upheld the judge’s order of a consecutive term of 7 months for the second offence.  

47.  I am satisfied the total sentence should reflect that three forged identity cards were involved.  I am satisfied a total sentence of 2 years and 6 months’ imprisonment properly reflects D1’s overall criminal culpability on the conspiracy charges 3, 6 & 7.  

48.  The forged identity card bearing D1’s photograph was in the name of Ng Ka Hoi, the name which D1 used to collect the forged identity cards.  I am satisfied a concurrent sentence is appropriate. 

49.  I am satisfied D1 having overstayed before entering into the conspiracies adds to his culpability for which a consecutive sentence is appropriate making a total sentence of 2 years and 8 months’ imprisonment. 

50.  I am satisfied a total sentence of 2 years and 8 months’ imprisonment properly reflects D1’s criminality on the five charges and takes into account D1’s personal circumstances and the seriousness of the offences[17].    

D2

51.  The WeChat messages clearly show two separate arrangements for the transfer of the forged identity cards and the obtaining of employment.  I am satisfied a consecutive term of 2 months’ imprisonment making a total sentence of 2 years and 6 months’ imprisonment properly reflects D2’s overall criminal culpability on the conspiracy charges 6 & 7.  

52.  I am satisfied that D2 having overstayed before entering into the conspiracies adds to his culpability for which a consecutive sentence is appropriate making a total sentence of 2 years and 8 months’ imprisonment. 

53.  The illegal work undertaken by D2 being the same as his role in the conspiracies, I am satisfied a concurrent sentence is appropriate for charge 5.

54.  I am satisfied a total sentence of 2 years and 8 months’ imprisonment properly reflects D2’s criminality on the four charges and takes into account D2’s personal circumstances and the seriousness of the offences.    

Sentence

55.  The defendants are convicted and sentenced as follows:

D1

Charge 3 – 2 years and 2 months’ imprisonment;

Charge 6 – 2 years and 2 months’ imprisonment with 2 months consecutive and 2 years concurrent to charge 3

Charge 7 – 2 years and 2 months’ imprisonment with 2 months consecutive and 2 years concurrent to charges 3 & 6;

Charge 2 – 12 months’ imprisonment concurrent to charges 3, 6 & 7; and

Charge 1 – 2 months’ imprisonment consecutive to charges 2, 3, 6 & 7.

The total sentence to be served by D1 is 2 years and 8 months’ imprisonment.

D2

Charge 6 – 2 years and 4 months’ imprisonment;

Charge 7 – 2 years and 4 months’ imprisonment with 2 months consecutive and 2 years and 2 months concurrent to charge 6;

Charge 4 – 2 months’ imprisonment consecutive to charges 6 & 7; and

Charge 5 – 2 months’ imprisonment concurrent to charges 4, 6 & 7;

The total sentence to be served by D2 is 2 years and 8 months’ imprisonment.

[1] Cap 115.

[2] Cap 177.

[3] Cap 200.

[4] Cap 200.

[5] The defendants first appeared for plea and sentence on 7 October 2020.  The court not being satisfied the summary of facts were sufficiently clear and precise as they should have been in order to explain the pleas of guilty and to assist the court, the case was adjourned to 13 October for the prosecution to amend the summary of facts.  The summary of facts requiring further amendment the case was further adjourned to 30 October.

[6] In STCC 4517/2019 Zhang Xiaomei (D4) pleaded guilty to conspiring with Chen Jun (D2) to possess a forged identity card (amended charge 10).  The forged identity card is the same forged identity card subject of charge 6 in the current proceedings.  Zhang was sentenced to 12 months’ imprisonment on 1 April 2020.  Copies of the court papers including the charges, brief facts of the case and the magistrates’ notes have been shown to the parties.

[7] Mr Bok submitted HKSAR v Xie Chun Mei [2004] 1 HKLRD 865 (CACC 285/2003); HKSAR v Li Chang Li [2005] 1 HKLRD 864 (HCMA 935A/2004) and HKSAR v Liaqut Ali Khan HCMA 278/2009.

Mr Chan also submitted HKSAR v Li Chang Li [2005] 1 HKLRD 864 and HKSAR v Ma Ming [2013] 1 HKLRD 813.  Mr Chan also relied on the Reasons for Sentence in HKSAR v Hon Yin Sang & others DCCC 1349/2010.  

[8] See §6 of the written mitigation submission of D1.

[9] See §§1-6 & 32 of the written mitigation for D2.

[10] [2004-2005] HKCLRT 193.

[11] DCCC 1349/2010. An agreed translation of the Reasons for Sentence have been submitted to court.  See §§20-29 of the written mitigation for D2.  

[12] CACC 17/2018 at §§7-12, 18, 34 & 43-45. When adjourning the case on 7 October 2020, the court referred the parties to HKSAR v Baljit Singh for their consideration. During the adjournment Mr Chan filed additional mitigation on behalf of D2. 

[13] See §18 of the Reasons for Sentence in HKSAR v Baljit Singh DCCC 328/2017.Also see§17 HKSAR v Baljit Singh CACC 17/2018.

[14] [2006] 2 HKLRD 181 at §15.

[15] HKSAR v Baljit Singh at §11.  Reasons for Sentence in DCCC 328/2017 at §5.

[16] See §9.4 of the written mitigation submission of D1 and §§16-19 & 33 of the written mitigation for D2.

[17] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 as applied in HKSAR v Pau King Kong [2013] 3 HKLRD 676.