HKSAR v. YAN AN AND OTHERS

DCCC814/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 814 OF 2012

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Reasons for Sentence

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1.  D1 to D5, you have pleaded guilty to the 1st charge of conspiracy to obtain services by deception, contrary to section 18A of the Theft Ordinance and sections 159A and C of the Crimes Ordinance.

2.  That charge was that between 1 February 2012 and 10 July 2012, in Hong Kong and elsewhere, you conspired together and with persons unknown including two persons by the name of Lo Chan and Lo Lam to dishonestly obtain the services of Emirates Airlines Limited on 11 July 2012 from Hong Kong to Dubai and then from Dubai to Sao Paulo.  You deceived Emirates Airlines by falsely representing that each one of you were taking the flights en route to go to Paraguay for training in a hospital when in fact your intention was eventually to enter Argentina illegally for economic reasons. 

3.  Each one of you have been charged with one similar offence of making a false representation to an immigration assistant lawfully acting under the execution of Part II of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance. 

4.  The offences all took place on the same date, the 10 July, at the Arrival Hall of Lok Ma Chau Control Point, New Territories, in Hong Kong, whereby each one of you made a false representation to an immigration officer representing that you were coming to Hong Kong to transit to go to Bali.  You in fact had every intention to go ultimately to Argentina illegally.

5.  The 1st defendant, you have a further charge of possession on 10 July of forged travel documents which were five forged passports.  They were one Japanese passport and four HKSAR passports. 

6.  D1 you have pleaded guilty to Charges 1, 2 and 7; D2, Charge 1 and 3; D3, Charge 1 and 4; D4, Charges 1 and 5; and D5, Charges 1 and 6.

7.  Defendants, you yourselves and other parties were parties to a conspiracy in charge 1.  Those persons had arranged for you defendants to travel on Emirates Airlines to your eventual destination of Argentina.  Months before, that is starting from February 2012, you were asked by those arranging the illegal entry into Argentina to give your passports and photographs for the necessary arrangements. 

8.  You are all mainlanders from China and from various provinces.  Sometime in early July you were told by the arranger to go to Shenzhen.  Once in Shenzhen you were told to wait until arrangements had been completed and one person by the name of Lo Lam, who was a co-conspirator charged in this indictment, instructed you all to go to a hotel in Shenzhen on 10 July 2012.

9.  D1 to D5, you then all met and were introduced to each other there.  Lo Lam then distributed air tickets to each of you, for your trips to Bali.  He then coached each of you to present them on your arrival in Hong Kong for clearance and that you should say that you were in transit in Hong Kong to go to Bali for sightseeing.

10.  On that day you all presented your genuine People’s Republic of China passports and the air tickets for Bali for clearance and falsely represented to the immigration officers that you were going there for holiday.  This occurred at the Lok Ma Chau Control Point. 

11.  Save for D1 who was permitted to enter, D2 to D5, you were refused entry to Hong Kong.  D2 to D5 then met with Ah Lam in China and he gave you all papers and airline tickets to go to Paraguay.  Thereafter you came to Hong Kong by ferry from the Shekou Control Point to Hong Kong Airport on the same day, that is 10 July 2012.  Inside the transit area of the restricted zone in the Hong Kong Airport where no permission to land in Hong Kong is required, D2 to D5, you approached the airline staff at the check-in counter of Emirates Airline, produced your genuine PRC passports and genuine e-tickets which showed your eventual destination to be Paraguay via Dubai and Brazil.  Each of you misrepresented to the airline staff that you were going to Paraguay for training in a hospital while in fact you intended to sneak into Argentina illegally for employment.  You were each given your boarding passes to the respective flights to Sao Paulo, Brazil, via Dubai.  Your eventual flight to Paraguay was not however via Emirates Airlines Limited.

12.  On the other hand, D1, you having entered Hong Kong, went to Hong Kong Airport and approached the airline staff at the check-in counter of Emirates Airlines Limited outside the restricted zone.  You produced your genuine PRC passport and e-ticket which showed again the eventual destination to be Paraguay.  You also misrepresented to the airline staff that you were going to Paraguay for training while in fact you had intended to sneak into Argentina illegally for establishing a supermarket business.

13.  The airline staff found you to be suspicious.  They then called the immigration officers to the airline counter which was outside the restricted zone whereupon the immigration officers found a forged Japanese passport in the name of Tomohisa Yamashita bearing your, D1’s photo and four forged HKSAR passports bearing the real names of D2 to D5 and photographs of D2 to D5.  These forged passports were hidden in the sleeve of a synthetic leather covered notebook which was found in D1’s hand carry luggage.  Subsequently, D2 to D5, you were all arrested at the boarding gate of the flight which you were about to board to Dubai.

14.  The airline staff at the check-in counter of Emirates Airlines Limited stated that if D1 to D5 really flew to Paraguay, should they have known that you all intended to sneak into Argentina illegally instead of going to Paraguay for training in a hospital, they would not have allowed you all to board the aeroplane en route to Paraguay.

15.  D1 to D5, you all have counsel representing you.  Mr P Y Lo, counsel, represents the 1st defendant; Mr Tony Li represents you, the 2nd and 3rd defendants; and Mr Victor Cheung represents you, the 4th and 5th defendants.

16.  Your counsel have all made a full and thorough mitigation on your behalf and I have also taken into account the various cases that have been placed before me when considering the appropriate sentence to be passed upon you. 

17.  Common to you all defendants is the following.  All of you defendants are of clear record.  You all came from Mainland China with the objective to leave Mainland China to enter into Argentina illegally either for employment or for setting up a business.  The reason for you going to Argentina was because of the difficult financial constraints that you had in your homeland, mainland China.  You have all pleaded guilty and written me letters telling me your remorse for committing these offences.

18.  I have also had set out to me your various personal difficulties faced by you at home, the reasons why you committed these offences.  I shall not reiterate those but I have taken those into account. 

19.  As for D1, you are aged 30 and married with a 2-year-old daughter.  You had worked in Italy before in a factory from 2006 until you returned to China in 2011.  At the time of the offence you were unemployed.

20.  Mr Lo has informed me that you were given the false passports not to be used all by yourself but obviously for carrying for the other defendants for the purposes of illegally entering another country which would be Argentina.

21.  D1, the passport in which your photo was attached to was in a different name while all the other passports were in the names of the other defendants.  You were entrusted, you say, with these passports for the purposes of giving then to one Ah Kiu in Paraguay, you, however, were not part of a syndicate but was only a courier and you were informed by Ah Lam that he did not trust the other defendants as they were younger persons.  He therefore gave the passports to you to look after and also considering the fact that you yourself had been outside mainland before.  

22.  As for D2 and D3, you are a married couple and you have a 3-year-old daughter.  D2, you are 27 years of age and you have said that had you been successful in entering Argentina, you would have had to pay 100,000 RMB to those making the arrangement.  As for D3, you are 23 years of age and in view of the lack of opportunity for work where you lived, you decided to follow your husband. 

23.  D4 and D5, you are the youngest of the defendants who are co-habitants and are girlfriend/boyfriend.  D5, you are actually pregnant with D4’s child.  D4, you are 19 years of age and the reason why you wanted to go to Argentina is because your father is already working in Argentina and employment is lucrative, therefore, you yourself decided to look for employment there.  D5, you are 20 years of age and for the same purposes wish to go to Argentina.

24.  The most recent case on obtaining services by deception in this type of scheme where persons are being trafficked to other countries and making use of Hong Kong’s position as a hub of communication to assist illegal immigrants to enter third countries is in HKSAR v Lee Shinwon [2012] 1 HKLRD 283.  The judgment of that case was handed down on 14 November 2011.  That case also referred to other similar cases, and cited in the judgment was that of HKSAR v Cheng Kwong Chung CACC536/2001, HKSAR v He Wen You [2009] 3 HKLRD 445 and HKSAR v Hung Kong Nam CACC346/2006 and HKSAR v Yim Kim Ping CACC67/2009.

25.  It was set out clearly in Lee Shinwon that the sentencing goal for human trafficking was deterrence.  Such offences involved sophisticated planning and arrangements to assist illegal immigrants to enter a third country using false documents.  These activities tarnished Hong Kong’s international reputation and undermined the laws of Hong Kong and other jurisdictions which had a mutual responsibility to punish and deter those being trafficked.  Thus, the sentences must be sufficiently severe to the persons who might be approached to assist in such schemes to realize the seriousness of the crime and the consequences to them if detected. 

26.  The court there referred to the cases I have referred to earlier, Cheng Kwong Chung, He Wen You and Yim Kim Ping.  It was also necessary, it was held, to distinguish between the culpability of the persons being trafficked and those organizing, assisting in and profiting from the trafficking, and to achieve consistency in sentencing criminal conduct, the factual matrix must be closely similar to the Court of Appeal authorities. 

27.  It went on to hold no further discount for good character was warranted, the one-third discount from plea included allowance for good character.  Previous good character normally counted for little for offences which required severe deterrent sentences and there was no benchmark starting point.

28.  In the case of He Wen You, the defendant, a holder of a genuine PRC passport, checked in for a flight to Bangkok, went through the departure examination procedures at the airport to go to Bangkok.  He then queued up at the boarding gate for a flight bound for Rome, Italy, holding a boarding pass for a different named customer.  He was intercepted and he was charged for making a false representation to an immigration assistant, namely he was leaving Hong Kong for Thailand, and for obtaining services, namely the services of the flight to Rome, Italy, by deception by falsely representing that he was the person whose name was on the boarding pass. 

29.  The Court of Appeal in that case held that the proper starting point for the person being trafficked, that is similar to all five of you here, for the false representation offence, that is falsely saying you were leaving Hong Kong for a destination when in fact you were not going to that destination was a starting point of 27 months after trial.  For obtaining services by deception, namely that in that case he was falsely representing he was the person on the boarding pass to the airline was one of a starting point of 32 months imprisonment after trial. 

30.  I bear in mind here that in your particular cases that the facts of the case show a misrepresentation not as to identity, but for the purposes of travel.  All of you had used your genuine PRC passports, but falsely represented your real or actual intentions.  Nevertheless, the purpose or goal of your using Hong Kong and leaving Hong Kong was to go to Argentina illegally.

31.  I must, as a sentencing court, be aware of the matters referred to earlier and in Lee Shinwon as to the policy involved, considerations and the comity of nations’ considerations.  It is clear that this type of offences involve exploitation of you people from mainland for substantial sums as was evident by D2 in having to pay over 100,000 Renminbi if he were to be successful in entering Argentina.

32.  I am aware that these offences deliberately seek not only to undermine Hong Kong laws but also the immigration laws of other jurisdictions.  As a result, these activities would tarnish Hong Kong’s international reputation.  Further, as a result of these activities, immigration authorities of foreign countries 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.

33.  The comity of nations’ consideration applies where mutual responsibility should be shared by all nations to punish and deter those who tried to cross international borders with false travel documents.

34.  D4 and D5, although you are under 21 and the court may consider whether there are other more appropriate sentences other than imprisonment, it is my view that in view of the seriousness of this offence and the deterrence set down by the Court of Appeal that the only appropriate sentence to you both is one of a sentence of imprisonment.

35.  For D1, you have a further charge of possessing five false passports, I have been assisted by reference to the case of HKSAR v Ma Yuen Chi CACC537/2005, the date of judgment being 14 June 2006.  In that case the court accepted that a sentence of 5 years’ imprisonment after trial was appropriate for the possession of 11 forged passports.  In that case, a courier was found carrying a large number of false passports.  It was said in that case there was no mitigating factor other than the plea to which the applicant had been given the one-third discount. 

36.  I accept in your case you did not have 11 passports but had five.  I also accept there is no evidence of you working for a syndicate.  The offence relating to false passports is again a very serious offence as there is an obvious international dimension to them.  There are obviously various methods to which people use to smuggle people in to different countries and that was clearly evident in this case as to how these passports were to be used by you all to eventually enter into Argentina. 

37.  I am of course fully aware that D2 to D5 were not in possession of these passports and there was no evidence before me that they knew of these forged passports.

38.  On this basis and taking into consideration the sentences as previously passed in the other cases and the cases that I have cited, defendants, you should be sentenced to the following terms of imprisonment.

39.  For Charge 1, I take a starting point of 33 months’ imprisonment had I convicted you after trial, and giving you all full credit for your plea of guilty, I reduce that term to one of 22 months’ imprisonment. 

40.  For the offences which you are all individually charged with Charges 2 to 6, of making a false representation to an immigration officer, that is D1, Charge 2, D2, Charge 3,  D3, Charge 4, D4, Charge 5, D5, Charge 6, I take a starting point of 27 months’ imprisonment had I convicted you after trial and reduce that term to 18 months’ imprisonment.

41.  For D1, on Charge 7, I shall take a starting point of 42 months’ imprisonment and giving you full credit for your plea of guilty, I reduce that term to 28 months’ imprisonment.

42.  For D2 to D5, those terms of imprisonment shall run concurrent to each other.  That will make a total term of 1 year and 10 months’ imprisonment.

43.  For D1, Charges 1 and 2 shall run concurrent to each other similar to the other defendants’ sentences.  However, Charge 7 being a distinct and separate charge, that sentence shall be served partly consecutive and partly concurrent. 6 months shall run consecutive to the present term and the remaining terms are to run concurrent.  You shall therefore serve a total term of 28 months’ imprisonment which is 2 years 4 months’ imprisonment.