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Hksar v Chen Jingwei And Another

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date16 April 2020
Neutral Citation[2020] HKDC 146
Year2020
Judgement NumberDCCC559/2019
Subject MatterCriminal Case
CourtDistrict Court (Hong Kong)
DCCC559/2019 HKSAR v. CHEN JINGWEI AND ANOTHER

DCCC559/2019 & DCCC846/2019

(Heard together)

[2020] HKDC 146

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 559 OF 2019

--------------------------

HKSAR
v
CHEN Jingwei (D1)
SHI Yunping (D2)

---------------------------

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 846 OF 2019

--------------------------

HKSAR
v
CHEN Jingwei
---------------------------

Before: His Honour Judge W.K. Kwok

Date of Ruling: 11 March 2020

Date of Reasons for Decision: 16 April 2020

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REASONS FOR DECISION

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1. This was the prosecution’s application to consolidate these two cases which I shall refer to simply as DCCC559 and DCCC846.

2. There are two defendants in DCCC559. They are Mr. Chen Jingwei (D1) and Madam Shi Yunping (D2). The Charge Sheet contains 17 charges. D1 is named in each of these charges either solely (Charges 1 to 3, 6 to 8, and 11 to 17) or jointly with D2 (Charges 4, 5, 9 and 10). In DCCC846, there is only one defendant. He is D1. The Charge Sheet contains two charges. It is the prosecution’s contention that all these 19 charges against D1 should be tried and heard together.

3. D1 through his counsel Mr. Shah opposed this consolidation application. D2 through his counsel Mr. Wong maintained a neutral stance on this issue, and did not take part in the argument.

4. After hearing submissions from Mr. Chan, the Public Prosecutor, and Mr. Shah on 11 March 2020, I allowed the application by the prosecution and ordered these two cases to be consolidated and heard together with reasons for the decision to be handed down[1].

5. These are my reasons.

Facts alleged by the prosecution

6. Mr. Shah accepted that this Court could assume for the purpose of this application that the prosecution was in a position to prove by evidence the matters stated in its Summary of Facts.

7. The alleged facts are as follows. During the times of the alleged offences, D1 together with other persons arranged marriages to be entered into between some Hong Kong residents and mainlanders, but all of them knew that these marriages would be bogus. D1’s group offered monetary rewards to some Hong Kong residents who were in need of money and recruited them to become bogus spouses. They directed and assisted their recruits to obtain the necessary documentation in Hong Kong for completing marriage formalities in the mainland, and paid the expenses for obtaining such documents. They then took or directed their recruits to go to the mainland where some other middlemen received the recruits and took them to meet the mainlanders who were the other parties to the bogus marriages. The recruits and the mainlanders had never met before, but they completed the marriage formalities through the arrangement of the middlemen. The mainland “spouses” kept the marriage certificates. The Hong Kong “spouses” provided copies of their Hong Kong identity cards and home visit permits to their mainland “spouses”. The middleman then took the mainland “spouses”, sometimes together with the Hong Kong “spouses”, to apply for “Tanqin” exit endorsement and one-way permit to enter and settle in Hong Kong in the future. As coached by D1’s group, the Hong Kong “spouses” pretended to be genuine spouses of their mainland “spouses” in applications in the mainland and/or during immigration examinations in Hong Kong when the latter applied to come to Hong Kong and/or entered Hong Kong.

8. The prosecution contends that D1’s group had arranged 10 Hong Kong residents (PW1 to PW10) to enter into bogus marriages with 11 mainlanders, with PW1 entering into two bogus marriages. Hence, D1 is charged either alone or jointly with D2 that he or they had conspired with the other members of D1’s group or of their group, the Hong Kong “spouses” and the mainland “spouses” to defraud the Director of Immigration and his officers to obtain their permissions to allow the mainland “spouses” to enter Hong Kong. 9 of these 11 counts form part of the charges in DCCC559. They are Charges 1, 3, 4, 5, 6, 7, 8, 9 and 10. The remaining two counts are the two charges in DCCC846.

9. In DCCC559, the prosecution also contends that, when the mainland “spouses” were pregnant women, D1’s group and the parties to these bogus marriages also conspired to obtain delivery services of hospitals by deception, with the Hong Kong “spouses” falsely claiming to be the natural fathers of the expectant babies to obtain confinement bookings for the mainland “spouses” (Charges 2, 11, 14 and 15). After the babies were born, some of the Hong Kong “spouses” falsely claimed to be their natural fathers in birth registrations (Charges 12 and 16) and in applications for re-entry permits (Charges 13 and 17). No similar charges are found in DCCC846 since the mainland “spouses” there were males.

The prosecution’s submissions

10. Mr. Chan informed this Court that D1 was not charged with all 19 charges in the same charge sheet because the two offences that formed the subject matter of DCCC846 were discovered only after D1 had already been charged with the 17 charges in DCCC559.

11. Mr. Chan submitted that it would be expedient to consolidate these two cases in view of the similarities in the nature of all the charges as well as the similarities in the facts of these two cases against D1. Mr. Chan stressed that all 19 offences arose out of D1’s participation as an arranger and a middleman of bogus marriages.

12. Mr. Chan further argued that consolidating these two cases had the advantage that all charges would be dealt with by the same judge on one single occasion when it came to sentencing because when D1 was convicted of all or some charges in each of these two cases, the same judge would be in a position to assess the overall criminalities of all the offences found to have been committed by D1, and impose on him the appropriate overall sentence according to the principle of totality.

D1’s submissions

13. Mr. Shah stated at the outset of his submissions that he took no issue with the propriety of the joinder of the 17 charges in DCCC559. He said that all these charges had overlapping either in the form of a specific prosecution witness, and/or in the form of a defendant, i.e. D2. Mr. Shah pointed out that the charges with overlapping prosecution witnesses were Charges 1, 2 and 3 (involving PW1), Charges 6, 15, 16 and 17 (involving PW4), Charges 7, 11, 12 and 13 (involving PW5), and Charges 8 and 14 (involving PW6), and charges involving both D1 and D2 were Charges 4, 5, 9 and 10. Mr. Shah also agreed that the two charges in DCCC846 were properly joined together. He pointed out that the only issue to be determined was whether the two charges in DCCC846 should be joined together with the 17 charges in DCCC559.

14. Mr. Shah submitted that before these two cases could be consolidated, the prosecution had to point out the “nexus” or connections between the two charges in DCCC846 and the 17 charges in DCCC559. Mr. Shah argued that such nexus was missing on the following grounds.

15. First, the charge sheet of DCCC559 was dated 18 July 2019, but the charge sheet of DCCC846 was dated 12 November 2019. There was a time gap of almost 4 months between the commencement of these two sets of proceedings.

16. Second, while the offences in the two charges in DCCC846 were similar to those offences in the 17 charges in DCCC559, there were however no factual nexus or connections between them. There were no overlapping witnesses. PW9 and PW10 were the civilian witnesses to be called in DCCC846 but their evidence was totally unrelated to any of the charges in DCCC559. The immigration officers who conducted photo identifications with PW9 and PW10 were not involved in other photo identifications attended by the civilian witnesses to be called in DCCC559. Likewise, there was no overlapping of defendant because D2 was unrelated to DCCC846. There was also no allegation of joint enterprise or conduct in concert between the civilian prosecution witnesses in both cases. The alleged offences in Charges 18 and 19 were factually distinct and separate.

17. Third, severance could easily be maintained at this stage without causing any unfairness to the prosecution or the defence.

The applicable legal principles

18. The legal principles under consideration relate to joinder of multiple counts against one defendant in one charge sheet.

19. The starting point is section 18(1) of the Criminal Procedure Ordinance (Chapter 221). Section 18(1) stipulates that:

“Subject to the provisions of the rules made under this Ordinance, charges for more than one offence may be joined in the same indictment.”

20. The next relevant statutory provision is Rule 7 of the Indictment Rules (Chapter 221). Rule 7 provides that:

“Subject to section 18 of the Ordinance, charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character.”

21. If the criteria laid down by Rule 7 are satisfied, it may be proper to join the charges together, but the Court still retains a discretion not to order joinder of the charges; and if the charges have already been joined, the Court may order a severance of the charges by virtue of section 23(3) of the Criminal Procedure Ordinance, which provides that:

“Where, before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of...

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