Hon Cheung JA (giving the reasons for judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

Leave to appeal against sentence
刑期上訴許可

The applicant was charged with two offences. The first charge (i.e. Charge 1 in the charge sheet) was 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 (Cap. 115 of the Laws of Hong Kong).  The second charge (i.e. Charge 5 in the charge sheet) was conspiracy to obtain services by deception, contrary to section 18A(1) of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong) and sections 159A and 159C of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong).
申請人被控兩項控罪。第一項控罪（即控罪書的第一項控罪）是向一名根據或為執行《入境條例》第 II 部而合法行事的入境事務助理員作出虛假的申述，違反《入境條例》（香港法例第 115 章）第 42(1)(a) 條。第二項控罪（即控罪書的第五項控罪）是串謀以欺騙手段取得服務，違反《盜竊罪條例》（香港法例第 210 章）第 18A(1) 條和《刑事罪行條例》（香港法例第 200 章）第 159A 及 159C 條。

The applicant denied all the charges.  The case was heard before Deputy District Judge Douglas Yau. After the prosecution adduced evidence, the applicant admitted the first charge, and when the Judge held that he had a case to answer in respect of the second charge, he also pleaded guilty to that charge.
申請人否認所有控罪。案件由區域法院暫委法官游德康審理，申請人在控方提出証據後承認第一項控罪及於游法官裁定他需要就第二項控罪答辯時承認這項控罪。

The Judge adopted 3 years’ imprisonment as the starting point for the first charge and, as the applicant did not plead guilty at the commencement of the trial, reduced the term by approximately 16% — instead of the usual one third — to 2 years and 6 months.  For the second charge, the Judge also adopted 3 years’ imprisonment as the starting point and, again giving a discount of approximately 16%, reduced the term to 2 years and 6 months.  The two terms were ordered to run concurrently. The applicant applies for leave to appeal against sentence.
游法官以三年監禁為第一項控罪的量刑基準，因申請人不是在審訊開始時就承認控罪，所以將一般給予的三分一刑期扣減改為約百分之十六的刑期扣減，第一項控罪的刑期是兩年六個月監禁。游法官同樣以三年監禁作為第二項控罪的量刑基準及給予申請人約百分之十六的刑期扣減，刑期為兩年六個月監禁，兩項刑期同期執行。申請人就刑期提出上訴許可申請。

Particulars of charges
控罪詳情

The particulars of the first charge were that the applicant, “on the 12th day of November 2007 and in Hong Kong, made to an Immigration Assistant lawfully acting under or in the execution of Part II (Departure Examination) of the Immigration Ordinance, a representation which [the applicant] knew to be false or did not believe to be true, namely he was leaving Hong Kong for Thailand”.
第一項控罪的罪行詳情是申請人「於 2007 年 11 月 12 日在香港，向一名根據或執行《入境條例》第 II 部[離境訊問]而合法行事的入境事務助理員作出明知為虛假或自己亦不信為真確的申述，即申述他正離開香港前往泰國」。

The particulars of the second charge were that the applicant and the 3rd defendant herein, “on or about the 12th day of November 2007 and in Hong Kong, conspired to dishonestly obtain services from Cathay Pacific Airways, namely allowing the applicant to board Flight CX 293 from Hong Kong to Rome on the strength of a boarding pass relating to that Flight and belonging to Chan Kwok Keung, by deception, namely by falsely representing that the applicant was the said Chan Kwok Keung”.
第二項控罪的罪行詳情是申請人與本案的第三被告人「於或約於 2007 年 11 月 12 日在香港，串謀以欺騙手段，即虛假地表示該申請人是陳國強，從而不誠實地取得國泰航空公司的服務，即以一張屬於陳國強的香港往羅馬的 CX 293 航班的登機證，讓申請人登上該班航機」。

Facts
案情

The applicant was a resident of Mainland China.  He entered Hong Kong on 12 November 2007 via Lok Ma Chau.  On the same day, at the check-in counter of Cathay Pacific Airways (“Cathay”) at Kowloon Station of the Airport Express Line, he produced a PRC passport and checked in for a flight bound for Bangkok, Thailand.  The staff members of Cathay issued to the applicant a boarding pass for the flight to Bangkok.  On the same day, the applicant went through departure examination procedures at the Hong Kong International Airport for going to Bangkok.  Subsequently the applicant, holding a boarding pass and a PRC passport, queued up at the boarding gate for a flight bound for Rome, Italy.  A security officer of Cathay requested the applicant to produce his boarding pass and passport.  It was then discovered that the name on the boarding pass was different from that on his passport.  At the same time, immigration officers intercepted the 3rd defendant nearby and questioned him.  He later admitted to the immigration officers that he was instructed by someone called “Xiao Gao” to take the applicant and another passenger to Rome and that, upon arrival at the airport at Rome, he would give the applicant a passport for him to go through the entry formalities.  The name of the holder of that passport was with the same as the name on the boarding pass held by the applicant for going to Rome.  The 3rd defendant said that the boarding pass and passport in question were given to him by “Xiao Gao” and that he would go to Rome with the applicant on that flight.
申請人是一名內地居民。他於 2007 年 11 月 12 日經落馬洲進入香港境內，並於同日在機場快線九龍站的國泰航空公司櫃位以一本中國護照辦理前往泰國曼谷的登機手續，其後航空公司職員發給申請人一張前往曼谷的登機證。申請人並於同日在香港國際機場辦理前往泰國的離境檢查手續。申請人其後手持一張登機證及一本中國護照在前往意大利羅馬的航機登機閘口排隊登機，申請人被航空公司的保安人員要求出示其登機證及護照，之後被發現其登機證與護照的名字不同。此時入境處人員在附近截查第三被告人。第三被告人後來向入境處人員承認他是應一名叫「小高」的人士的指示，將申請人及另外一名乘客帶往羅馬及在抵達羅馬的機場後交予申請人一本護照以辦理入境手續。該本護照的持有人名字與申請人持有往羅馬的登機證上的名字相同。第三被告人指有關的登機證和護照都是「小高」交給他的，而他亦會與申請人一同乘搭該班航機前往羅馬。

Ground of appeal
上訴理由

The ground of appeal relied on by the applicant is that the sentences for both offences are manifestly excessive.
申請人所持的上訴理由是兩項控罪的判刑都是明顯過重。

Authorities
案例

The Court of First Instance adopted 12 months’ imprisonment as the starting point in two magistracy appeal cases concerning section 42(1)(a) of the Immigration Ordinance, namely HKSAR v. Wang Wu (HCMA 801/2003) and HKSAR v. Zhang Chang Yong (張長勇) (HCMA 1256/2003).  In our view, however, these sentences are manifestly inadequate.
雖然高等法院原訟法庭在兩宗涉及《入境條例》第 42(1)(a) 條源自裁判法庭的上訴案件（即HKSAR v. Wang Wu (HCMA 801/2003) 及 HKSAR v. Zhang Chang Yong (HCMA 1256/2003) (張長勇)）中採用十二個月監禁為量刑基準，但本庭認為有關的判刑是明顯過輕。

We must point out that a higher starting point is applicable to this kind of cases, which clearly involve sophisticated planning and arrangement.  Making use of Hong Kong’s position as a hub of communications, offenders assist illegal immigrants in entering a third country.  By means of a fraudulent scheme, offenders help illegal immigrants enter the restricted area of the Hong Kong International Airport, where they then use false boarding passes to board flights bound for a third country.  Upon arrival in that country, they will use false identity documents for gaining entry into that country.  These activities will obviously tarnish Hong Kong’s international reputation.  Furthermore, as a result of those activities, immigration authorities of foreign countries will 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.  Severe, deterrent sentences must therefore be imposed for those offences.
本庭必須指出一個較嚴峻的量刑基準是適用於這類案件的。明顯地，這類案件是經過周詳的計劃及安排，不法份子利用國際運輸樞紐的香港協助非法移民進入第三國家，他們以偷龍轉鳳的手法，協助非法移民在進入香港國際機場禁區後以虛假的登機證登上前往第三國家的航機及在到達該國後利用假證件入境。有關的行為明顯會影響香港的國際聲譽及使這些國家對手持合法旅遊證件入境的香港旅客存有戒心，因而使香港旅客在進入該等國家的境內時遭受某程度的不便，因此法庭必須判予較嚴峻的刑期以儆效尤。

This position is reinforced by the sentence imposed by the Court of Appeal in a case with facts similar to those of the present case.  In HKSAR v. Cheng Kwong Chung (D2), Wong Lai Ming (D4) and Lu Qiufeng (D7) (CACC 536/2001), D7 faced three charges, two of which being the same as the two charges in the present case and the remaining one being “possession of a false passport”.  The judgment of the Court of Appeal said that D7 pleaded guilty to making a false representation to an immigration officer, but according to the Reasons for Conviction and Sentence prepared by the trial judge, D7 in fact pleaded not guilty to all three charges. Miss Yam, Senior Public Prosecutor for the respondent, has also agreed that according to the record of the Department of Justice, D7 denied all three charges at trial and did not plead guilty to any one of them.  She was sentenced to 32 months’ imprisonment for each of the two conspiracy offences and 27 months’ imprisonment for the offence of making a false representation, and the three sentences were ordered to run concurrently.  The Court of Appeal affirmed the sentences and dismissed D7’s application for leave to appeal against sentence.
從上訴法庭在一宗與本案案情雷同的案件中作出的刑期亦可反映出有關的立場。在 HKSAR v. Cheng Kwong Chung (D2), Wong Lai Ming (D4) and Lu Qiufeng (D7) (CACC 536/2001)一案中，D7 被控三項控罪，其中兩項與本案的兩項控罪相同，另一項控罪是「管有虛假護照」罪。雖然上訴法庭的判決書指 D7 就向入境處人員作出虛假申述的控罪認罪。其實，根據原審法官定罪及刑期的判案理由書，D7是否認三項控罪的。代表答辯人的任可高級檢控官亦同意根據律政司的檔案記錄，D7 在審訊時是否認三項控罪的，她並沒有就其中一項控罪認罪。原審法官就兩項串謀罪判處她三十二個月監禁及就另一項虛假陳述罪判處她二十七個月監禁，並命令三項刑期同期執行。上訴法庭對原審法官作出的判決表示同意，並拒絕 D7 就刑期的上訴許可申請。

Furthermore, in HKSAR v. Hung Kong Nam（洪江南）and Cheng Yung（鄭勇）(CACC 346/2006), the two defendants faced the following three charges:
另外，在 HKSAR v. Hung Kong Nam (洪江南) and Cheng Yung (鄭勇) (CACC 346/2006)一案，兩名被告人被控三項控罪，即

Aiding and abetting the making of a false representation to an immigration officer, contrary to section 42(1)(a) of the Immigration Ordinance;
協助、教唆他人向入境處人員作出虛假陳述，違反《入境條例》第 42(1)(a) 條；

Conspiracy to defraud an airline company; and
串謀欺騙航空公司；及

Aiding and abetting the possession of a forged identity card and false credit cards.
協助、教唆管有假身份證及假信用咭。

Both defendants were sentenced to 12 months’ imprisonment for “aiding and abetting the contravention of the Immigration Ordinance” and were sentenced to 3 years’ imprisonment and 3½ years’ imprisonment respectively for “conspiracy to defraud an airline company”.  All sentences were ordered to run concurrently.  The Court of Appeal dismissed the appeal against sentence, observing that the sentences imposed by the trial judge for the offences concerning the Immigration Ordinance were manifestly inadequate and should have been brought closer to those imposed for “conspiracy to defraud an airline company”.
原審法官就「協助、教唆違反《入境條例》」罪作出的刑期是十二個月監禁；而就「串謀欺騙航空公司」罪，判處兩名被告人分別就每項控罪入獄三年及三年半，所有控罪的刑期同期執行。上訴法庭駁回針對刑期的上訴，並指出原審法官就違反《入境條例》的控罪所作出的刑期明顯是過輕，它應該相約於「串謀欺騙航空公司」的刑期。

The facts of the aforesaid case and those of the present case are by and large the same: Mainlanders came to Hong Kong and obtained air tickets to go to countries which they could lawfully enter, but, having gone through the departure formalities in Hong Kong, they were given boarding passes or travel documents bearing names of other persons to go to countries which they had no right to enter.  In Cheng Kwong Chung, D7 was an illegal immigrant; in Hung Kong Nam and Cheng Yung, the two defendants were people who assisted illegal immigrants to enter a third country.
上述案件的案情亦與本案大同小異。該案都是涉及內地人士來港後，手持機票前往一個他們獲准合法進入的國家，但當他們在香港完成辦理出境手續後卻轉持另外一名人士的登機證或者旅遊證件前往一個他們沒資格入境的第三國家。在Cheng Kwong Chung 一案, D7 是一名非法移民，在洪江南及鄭勇一案，兩名被告人是協助非法移民進入第三國家的人士。

The role of the applicant
申請人的角色

Mr. Chong, Counsel for the applicant, submits that the applicant merely participated in, as opposed to plotted or carried out, this illegal operation, and that it was the 3rd defendant who plotted or carried out the operation.
代表申請人的莊天巡大律師的陳詞是申請人並非該次非法行動的策劃人或執行人，他只是參與該次非法行動。有關的策劃人或執行人是第三被告人。

Miss Yam for the respondent argues that although the applicant and the 3rd defendant played different roles, there were equally culpable for making a false representation to an immigration officer.  The applicant was one of those who initiated this scheme.  Had he not desired to go overseas to work, no one would have made the corresponding arrangements; the 3rd defendant was merely one of those who carried out this scheme, which needed the applicant’s concerted action in order to achieve its purpose.  Miss Yam contends that as far as deceiving the immigration officer was concerned, the applicant was in fact the principal offender and the 3rd defendant was an accomplice, and therefore the two of them should in principle be equally culpable and receive the same sentence.
代表答辯人的任可律師指出，雖然申請人和第三被告人在本案所扮演的角色不同，但他們就向入境處人員作出虛假陳述的罪責是相同的。申請人是整個計劃的始作俑者之一，若不是他想到海外工作，便不會有人作出相應的安排；第三被告人只不過是該計劃的其中一名執行人，要實行該計劃一定要得到申請人的配合。任律師指申請人其實是欺騙入境處人員的主犯，而第三被告是一名從犯，因此原則上，兩人的罪責和刑期應該是相同的。

In our judgment, although the applicant took part in this illegal immigration scheme, there should be some difference between the culpability of those who plotted or carried out the scheme and that of the illegal immigrants who took part in the scheme.  What usually happens is that someone plots a scheme, and then solicits those who want to be smuggled to a foreign country to join the scheme, and then assists them to illegally enter that country.  As the illegal immigrants only do what the mastermind instructs them to do, we consider that the mastermind or those who carry out the scheme should be more culpable.  Such a difference has in fact been demonstrated in the aforesaid two Court of Appeal cases.  In Cheng Kwong Chung, D7 was an illegal immigrant, whereas D2 and D4 were those who carried out the illegal immigration scheme and assisted D7 therein.  The trial judge adopted 3 years’ imprisonment as the starting point for these two defendants’ conspiracy charges.  In Hung Kong Nam, the defendants were both responsible for carrying out the illegal operation, and the trial judge adopted 3 years’ imprisonment and 3½ years’ imprisonment as the respective starting points for their conspiracy charges.
本庭認為雖然申請人亦是非法移民計劃的參與者，但從罪責的角度來看，該計劃的策劃人或執行人與參與計劃的非法移民的罪責是應該有分別的。一般來說，首先是由一名策劃人作出一個計劃，然後向有意非法移民的人士招手，繼而協助他們非法移民。由於這些非法移民只是依照策劃人的指示行事，因此本庭認為策劃人或執行人是應該負上較重的刑責的。兩者的區別其實已經從上述兩宗上訴法庭的案例反映了出來。在Cheng Kwong Chung 一案，D7是一名非法移民，而D2、D4 是協助 D7 進行該項非法移民行動的執行人，原審法官就兩人的串謀罪採用三年監禁為量刑基準。洪江南 一案的兩名被告人都是非法行動的執行人，原審法官就他們的串謀罪所採用的量刑基準分別為三年及三年半監禁。

The applicant in the present case was merely an illegal immigrant.  In light of the principle that sentences arising from similar factual matrices should be as consistent as possible, the sentence imposed in the present case should in our view be the same as those passed in Cheng Kwong Chung.  The Judge adopted the same starting point for the 3rd defendant and the applicant.  At trial, the Judge’s attention had never been drawn to Cheng Kwong Chung. We believe that had the Judge been made aware of that case, he would have directed his mind to the disparities in sentencing.
本案的申請人只是一名非法移民。在案情相約，刑期應該盡量一致的原則下，本庭認為本案的刑期亦應該與Cheng Kwong Chung 一案相同。游法官對本案的第三被告人及申請人採用相同的量刑基準。雙方的律師在原審時都沒有將Cheng Kwong Chung 的案例呈交游法官參考，本庭相信若游法官得悉有關案例，他會就刑期的區別作出處理。

Conclusion
總結

For the above reasons, the applicant’s application for leave to appeal against sentence is allowed and is treated as the appeal proper.  We adopt 27 months as the starting point for the first charge and reduce it by 16% discount to 23 months on account of the guilty plea.  The starting point for the second charge is 32 months and this is reduced by 16% to 27 months on account of the guilty plea. The two terms shall run concurrently and the total sentence is 27 months’ imprisonment.
基於上述原因，本庭批准申請人針對刑期的上訴許可申請，視申請為正式上訴。本庭就第一項控罪以二十七個月為量刑基準，在扣去百分之十六的認罪扣減後，刑期為二十三個月監禁；就第二項控罪以三十二個月監禁作為量刑基準，在扣去百分之十六的認罪扣減後，刑期為二十七個月監禁，兩項刑期同期執行，總刑期為二十七個月監禁。

Miss Sally Yam, Senior Public Prosecutor, for the Respondent.
答辯人：由律政司高級檢控官任可代表。

Mr. Chong Tin-chun, instructed by Tang, Wong & Chow, for the Applicant.
申請人：由鄧王周律師行轉聘莊天巡大律師代表。