12 Aug 2009
The appeal is dismissed because the 18 month overall sentence falls within the established and consistent sentencing approach to bogus marriage and conspiracy to defraud cases, the magistrate did not err in principle or impose an excessive term, and no guilty plea discount applied given conviction after trial.
15 Jul 2003
Because the sentencing judges had been inadvertently misled as to the prevalence of the offence and the statutory enhancement under section 27(11) OSCO is an extraordinary power intended for clear deterrent circumstances, the court removed the 25% enhancement, granted leave to appeal (including out of time and treating abandonments as nullities) and reduced the sentences accordingly.
5 Dec 2002
The conviction was safe: in the context of a sham operation where interviews were a necessary part of the fraud and reception staff knew the secret access code and controlled victims' movements, the judge permissibly inferred participation in the conspiracy. However, prevalence under section 27(11) OSCO must be assessed at the time of sentencing; because statistical evidence showed the offence had substantially declined by sentencing, enhancement was inappropriate and the 25% uplift was removed, reducing each sentence from five to four years.
3 Dec 2002
The judge correctly separated assessment of the grave features of the offence (and appropriate starting point) from the independent statutory provision permitting enhancement for prevalent offences under OSCO s27(11); the prosecution statistics demonstrated prevalence and justified a 50% enhancement; the starting points, discounts for plea and application of totality and persistence principles were appropriate, therefore the sentences were not excessive and the applications failed.
10 Sept 2002
The magistrate's reliance on the appellant's foreign national status as an aggravating factor was improper absent evidence that he came to Hong Kong to commit the offence or that an immigration charge applied; the appropriate starting point for this offence, ignoring foreign status, is six months imprisonment and after the one‑third plea discount the sentence should be four months imprisonment.