HKSAR v. TAM YIU FAI

DCCC 784/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 784 OF 2009

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of possessing false travel documents, contrary to s.42(2)(c)(i) of the Immigration Ordinance, Cap 115 and one charge of possessing forged identity cards, contrary to s.7A(1) of the Registration of Persons Ordinance, Cap 177.

2.  The 1^st charge relates to 3 false Hong Kong SAR passports in the names of Ngai Oi-lim (魏可林), Ng Tung-ning (吳東靈) and Leung Kim-fai (梁金肥) and 1 false Singaporean passport in the name of LIANG Yan-yan.

3.  The 2^nd charge relates to 3 forged Hong Kong identity cards in the names of Ngai Oi-lim (魏可林), Ng Tung-ning (吳東靈) and Leung Kim-fai (梁金肥).

4.  The events all happened at the Chak Lap Kok airport on 13 November 2008 round about midday.

5.  Facts of the events showed the immigration officers to have stopped a male LIN Shangoian (林上乾) at the boarding gate for flight AC-008 of Air Canada at 12.17pm. LIN Shangoian (林上乾) was found in possession of a forged HKSAR passport (s/n HA 0081457) and a forged HKID card (s/n C 461833(3)); both in the name of Cheung Lai-keung (張麗權).

6.  About 20 odd minutes later, at 12.45pm, immigration officers stopped another male LIANG Yanyu (梁衍瑜) at the same boarding gate for flight AC-008 of Air Canada. LIANG Yanyu (梁衍瑜) was found in possession 2 forged documents: a false HSAR passport (s/n H 00900636) and a false HKID card (s/n Z 016468(3)), also both in the name of Leung Kim-fai (梁金肥).

7.  In the meantime at 12.30pm police found the defendant wandering about at the airport bus terminus at Chek Lap Kok. When the defendant was stopped and searched, he was found in possession of 9 forged documents:-

(i)  Identification documents bearing the name of NGAI Oi-lim (魏可林):

(a)  HKSAR passport (s/n HA1926532) [Exhibit E-1]; and

(b)  HKID card (s/n Z 542350(4)) [Exhibit E-2];

(ii)  Air Canada membership card (s/n 505312382) in the name of NGAI Oi-lim [Exhibit E-8];

(iii)  Identification documents in the name of NG Tung-ning (吳東靈):-

(a)  HKSAR passport (s/n H00894159) [Exhibit E-6]; and

(b)  HKID card (s/n G6265525(5)) [Exhibit E-7];

(iv)  Air Canada membership card (s/n 510306522) in the name of NG Tung-ning [Exhibit E-9];

(v)  Identification documents in the name of Leung Kim-fai (梁金肥):-

(a)  HKSAR passport (s/n H 00900636) [Exhibit E4]; and

(b)  HKID card (s/n Z 016468(3)) [Exhibit E-5].

(vi)  Singaporean passport (s/n S 8414532B) in the name of LIANG Yan-yan  [Exhibit E-3].

8.  Not long afterwards, at 2pm, police stopped a male Ngai Oil-lim at the boarding gate for flight AC-008 of Air Canada. Ngai Oi-lim was found in possession of the following genuine documents of identity:-

(i)  HKSAR passport (s/n HA 1926532) in the name of Ngai Oi-im (魏愛鐮);

(ii)  HKID card (s/n) in the name of Ngai Oi-im (魏愛鐮).

9.  Telephone records check confirmed there were 7 telephone calls between the defendant’s mobile phones and Ngai’s mobile phone between 10.22am and 12.17pm on 13 November 2009.

10.  Exhibit E-1 (the HKSAR passport) and exhibit E-2 (HK identity card) found on the defendant bore the name and document number of the genuine documents found on Ngai Oi-im (魏愛鐮); but the photograph of LIANG Yabyu(梁衍瑜).

11.  Exhibit E3 (the Singaporean passport) found on the defendant bore the name of LIANG Yan yan but the photograph of LIANG Yabyu(梁衍瑜).

12.  Exhibit E-4 (HKSAR passport) and exhibit E-5 (HKID card) bore the name of Leung Kim-fai (梁金肥) but the photographs of LIN Shangoian (林上乾).

13.  Exhibit E-6 (HKSAR passport) and exhibit E-7 (HKID card) bore the name of NG Tung-ning (吳東靈) but the photographs of LIN Shangoian (林上乾).

14.  LIANG and LIN had been convicted of possession of the forged travel documents and forged Hong Kong identity cards; and had been dealt with in Shatin magistracy case of STCC-7944/2008.

15.  Penalty prescribed for the offence of possession of false travel documents, contrary to s.42(2)(c)(i) punishable under s.42(2) of the Immigration Ordinance, Cap 115 is a term of 14 years imprisonment and a fine of HK$150,000 for charges preferred on indictment.

16.  The penalty set out in s. 7A(1)(a) of the Registration of Persons Ordinance Cap 177 is a term of 10 years and a fine at level 6 upon indictment for the offence of possession of forged identity cards, contrary to s.7A(1) of the Registration of Persons Ordinance Cap 177.

17.  Penalty for the possession of false travel documents or forged HK identity card varies. Penalties imposed upon indictment for possession of false travel documents can generally be grouped into 3 categories:-

(a)  those who used the false travel documents to masquerade their own identity to pass through the immigration checks, either for the purpose of entering Hong Kong, leaving Hong Kong, or on transit to other places;

(b)  those who possessed the false documents for commission of other offences; and

(c)  those who possessed false travel documents for the purpose of assisting others to evade immigration checks.

18.  Those who possessed false travel documents for committing other offences generally received consecutive or partially consecutive terms of 12 months imprisonment (Lin Meng Chang CACC-146/2009; Chan Ka Kin CACC-474/2004; Ogunade CACC-213/2005).

19.  Those who possessed the false passports to masquerade their identity to enter, to depart or to transit in Hong Kong would be dealt with under s.75 of the Crimes Ordinance Cap 200 or s.42 of the Immigration Ordinance Cap 115. These usually attracted custodial terms of about 18 to 32 months imprisonment to 27 months (Ogunade CACC-213/2005; Tseung Yim Kwan CACC-531/2005; 27 months starting point utilized in He Wenyou CACC-235/2008 for making false representation to immigration officers, 32 months in Cheng Kwong Chun CACC-536/2001).

20.  For those who aid and abet the others to possess or use false passports or documents of identity to evade immigration detection, the terms imposed generally ranged from 27 months to 4 ½ years imprisonment (27 months SP in Pak Wan Lung CACC-573/1998; 3 to 4 ½ years in Cheng Kwong Chun CACC-536/2001; 3 years starting point adopted in Muoi CACC-28/2000 was considered to be lenient at para 60 of the judgment; 3 years starting point was used in Kim Tae-kuk CACC-449/1998; 4 years in Lam Yuk Fai, Steve FACC-12/2005 ; 5 years in Ma Yuen Chi CA-537/2005; and 6 years in Jiang Shou Fa CACC-380/1996) .

21.  The defendant was found in possession of 4 false passports (3 of HKSAR and 1 of Singapore) and 3 false HK identity cards bearing the particulars of 4 individuals but the photographs of the 2 mainlanders LIANG and LIN who were seeking to leave Hong Kong for Canada on the day in question. The facts are indicative of the fact that the defendant had those false passports and false HK identity cards for use of LIANG and LIN. There was no evidence to suggest the defendant was meant to accompany the mainlanders to leave Hong Kong. Rather the evidence indicated the defendant was tasked with the role of a courier in this syndicated operation of illegal immigration. In light of the number of the forged travel documents and documents of identity I consider the appropriate sentence after trial would be a term of 3 years imprisonment.

22.  Possession of forged HK identity card is considered to be less serious for the lack of international element. Hence for the possession of false identity cards charge, I adopt a starting point of 2 years. Since the false passport and the forged identity cards were relating to the same individuals, I impose concurrent terms of sentence for both charges.

23.  The defendant is 38 years of age. He used to work as a waiter in different restaurants. He met his wife in the mainland in 1998 and they got married a year later. His son was born in 2001 and his wife came to Hong Kong for family reunion in 2004. The couple divorced in 2005 and the defendant was granted custody of his son. His 8 years old son is staying with the parents of the defendant during the remand of the defendant.

24.  For his plea of guilty indicating remorse I do accord the defendant 1/3 discount for his sentence. For his marginal efforts made in relation to that matters I have been addressed in chambers, I gave him a further discount of 1 month. The sentences I do order are as follows:-

Charge 1 – a term of 1 year and 11 months; and

Charge 2 – a concurrent term of 15 months imprisonment.