HKSAR v. TAM CHI SUM AND ANOTHER

DCCC1169/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1169 OF 2010

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HKSAR
v.
Tam Chi-sum (D1)
Hui Tin-ping (D2)

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Before:

H H Judge Tallentire

Date:

30 March 2011 at 10.03 am

Present:

Mr Tong Ming, Counsel on fiat, for HKSAR
Mr Collins James Francis David, instructed by Messrs LCP, assigned by the Director of Legal Aid, for the 1st Defendant
Mr Albert Cheung, instructed by Messrs Chan & Tsu, for the 2nd Defendant

Offence:

Conspiracy to defraud (串謀詐騙)

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Reasons for Sentence

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1. Defendants, you were each convicted after trial of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap.200.

2. In my verdict, the facts were dealt with exhaustively and I can see no reason to repeat them.

3. Suffice it to say that the essence of the offence was to recruit and assist PW1 to use his passport to obtain boarding passes, whichwere passed on with a forged passport to a Mainlander to illegally enter Canada. PW1 was to receive $20,000 if the scheme had tocome to fruition. However, fortunately, it did not.

4. Both of you are of hitherto clear record.

5. I had adjourned the case to obtain probation officers’ reports, that is, background reports, on each of you to assist me in sentencing. They are extremely helpful and I have noted their contents and taken them fully into account when arriving at my sentence.

6. D2, it is to your credit that in that report, it is said you admit your involvement now, and I do note that, generally, both reportsare positive reports, speaking well of each of you.

7. Both Mr Collins and Mr Cheung entered mitigation for their respective clients. I am told that each of you accept the contents ofthe probation officers’ background report.

8. I am obliged to Mr Collins, especially, for his research. He tells me that whilst there is no tariff for this type of offence,his researches have led him to conclude that for similar offences, a starting point of about 3 years has been approved of.

9. There was much common mitigation entered.

10. As I have already said, both of you are of hitherto clear record, both are good family men, and both have been in steady employmentthroughout most of your lives.

11. In each case, letters of support had been written by family and friends. The sentiments expressed therein are reflected in theprobation officers’ reports.

12. Mr Collins said he could not easily explain how it was that you, D1, became involved in this scheme.

13. He informed me that the Mainlander involved had received 8 months’ imprisonment after a plea of guilty, and

Mr Cheung told me that the lady who is referred to as “the fat lady” received 7 months’ imprisonment after a plea of guilty.

14. Properly and realistically, both Mr Collins and

Mr Cheung accept that the respective responsibility for the criminality involved in this case attached to each of you is much higherthan attached to the other parties.

15. I had much helpful information on the background of your families and I accept that, in each case, your incarceration will involvea devastating effect on those families.

16. Both of you promise not to re-offend.

17. I turn now to the sentence itself.

18. This is a serious offence with international dimensions, which reflect adversely on the image of Hong Kong as a transit stationfor persons seeking to enter illegally other countries, in this case, Canada.

19. Together, you organised and arranged the commission of the offence.

20. D2, it goes greatly to your credit that you now accept and admit the part you played, and D1, you are less forthcoming.

21. Both of you have clear records and both are good family men, I accept that.

22. The motive, certainly as far as you, D2, are concerned, was financial. In the past, you had had gambling problems but I am toldthey are now behind you, but the present financial situation was formed by your family responsibilities.

23. I accept that, in each case, family and friends speak well of you and, with respect, neither of you have high education attainment,and I accept that in these circumstances, you did not fully appreciate the seriousness nor the criminality of these acts.

24. I am also satisfied that neither of you is likely to re-offend.

25. Therefore, in all those circumstances, I will be as merciful as my public duty to mark the seriousness of such offences will allowme.

26. You will each go to prison for a period of 30 months, that is 2½ years.

Tallentire
District Judge