Case Law Database

Smuggling of migrants


• Enabling illegal entry


• air


Fact Summary

At the material time, the defendant was employed by Singapore Air Terminal Services Limited as a ground service agent. He was part of a conspiracy, in the context of which he falsely represented that certain passengers were the persons named in the boarding passes even though he was aware they were not. The purpose thereof was that Canada Airways authorized their boarding.


Four incidents were ascertained in which unauthorized passengers were allowed to board. The defendant was present and on duty at least in two of such episodes. The defendant was arrested in connection to these facts.


Upon questioning, the defendant declared to believe that the smuggling scheme involved people including staff of the airlines and government departments. The defendant’s participation in the conspiracy lasted for over six months.


In ascertaining the facts, authorities relied much on testimonial and documentary evidence.

Commentary and Significant Features

The District Court of the Hong Kong Special Administrative Region noted as follows:


  • The defendant’s participation in the conspiracy to facilitate the smuggling of migrants amounted to willfully turning a blind eye - in his capacity as a ground service agent - to the fact that certain passengers (at least two) were not the same persons as those identified in the respective boarding passes. He thus deliberately refrained from performing his duty.
  • A ground service agent is assigned to checking the travel document and boarding pass of passengers lining up for boarding so as to assess whether further action is needed before allowing the boarding. The main duty of the staff is to prevent unauthorised passengers from boarding. By falling to act according to his duties, the defendant facilitating the smuggling of migrants.
  • Even though there was no clear evidence on the positive steps, if any, taken by the defendant pursuant to the illegal agreement in the two incidents that led to the boarding of unauthorized passengers and in which the defendant was present, by failing to perform his duties, the defendant played an instrumental role in the successful implementation of the conspiracy.
  • Airlines have been trying, as far as practicable, to prevent migrant smuggling. Measures are put in place and staff are engaged to prevent such activities not only to protect the commercial interests and the reputation of airlines, but also to ensure migration control, in which airlines nowadays often have a role to play. The illegal operation the defendant agreed to undermines the effectiveness of borders control. This is essential to Hong Kong. Yet, as an international city, Hong Kong further owes a duty in this aspect to all countries in the world. In this sense, see HKSAR v He Wenyou, CACC235/2008.
  • There are furthermore important security concerns. In present times, most countries are trying their best to combat and prevent terrorism. Permitting a person with false identity to board may increase the security risk to the flight and the destination country of the unauthorised passenger.
  • Whilst there is no direct evidence about the scale of the smuggling scheme, common sense dictates it must have involved much planning and organization. This is all more so the case in view of the defendant’s declaration referring to the involvement of ‘staff from the airlines and government departments’.
  • There was no evidence that the defendant had received any reward or compensation for his involvement in the migrant smuggling venture.
  • The defendant was not a mastermind of the smuggling scheme nor was he at the core of it. He might have just succumbed to the circumstances rather than taking an initiative to join. However, for such an illegal scheme to succeed, it needs people like the defendant. Deterrence is hence necessary also in respect of less active individuals as the defendant. Persons with the duty bestowed upon the defendant are the last barrier - or at least, possibly the last barrier - to the successful boarding of irregular migrants.
  • A sentencing starting point of three years’ imprisonment is appropriate and sufficient to reflect the nature of the offence and the degree of culpability. No discount was due because the defendant played an essential role to the success of the offence and the fact that its involvement was not a ‘one-time’ event. His participation lasted for over six months. His conduct further amounted to a significant breach of trust. For these reasons, no mitigation is triggered by the fact that the defendant was not the mastermind, planner or organizer of the smuggling scheme.


Against this background, the District Court of the Hong Kong Special Administrative Region sentenced the defendant to three years’ imprisonment.


This case illustrate how passive behaviours by ‘persons on duty’ may be equally critical for the success of migrant smuggling enterprises, thus triggering pressing deterrent responses from authorities, which are reflected in severe sentences.

Sentence Date:

Cross-Cutting Issues


... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• participant, facilitator, accessory



• occurred across one (or more) international borders (transnationally)

Involved Countries



Investigation Procedure

Involved Agencies

• Criminal Police
• Public Prosecutor

Procedural Information

Legal System:
Mixed System
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Proceeding #1:
  • Stage:
  • Official Case Reference:
    HKSAR v C.P.-K., Criminal Case Nos. 205 and 208 of 2011 (CONS)
  • Decision Date:
    18 October 2011


    Court Title

    District Court of the Hong Kong Special Administrative Region – Court of Appeal


  • City/Town:
    Hong Kong (China)
  • • Criminal


    The defendant was found guilty after trial of one count of conspiracy to obtain services by deception. On 18 October 2011, the competent judge issued its reasons for judgment, herein under analysis.


  • Verdict:
  • Migrants

    At least 2
    The decision refers to “two incidents” whereas “unauthorised passengers” were allowed to board, and in reference to which the defendant was on duty. The decision does not mention how many passengers boarded in each incident.

    Defendants / Respondents in the first instance


    First time offender. Single. Unemployed at the time of arrest.

    The Defence argued the Defendant had not played an active role in the migrant smuggling scheme. In mitigation, the Defence also noted that the Defendant had taken the initiative of resigning from his job, so as to retreat from the illegal operation. Furthermore, the Defendant had instructed the Defence not to present any excuses to his behaviour.

    Charges / Claims / Decisions

    Conspiracy to obtain services by deception.
    Theft Ordinance and Crimes OrdinanceSection 18 A(1), Cap.210 Theft Ordinance and Sections 159A and 159C, Cap. 200 of the Crimes Ordinance
    Term of Imprisonment:
    3 years

    The defendant was found guilty after trial of one count of conspiracy to obtain services by deception.


    District Court of the Hong Kong Special Administrative Region

    Sources / Citations

    Official case report: DCCC205 & 208/2011 (CONS)