R. v. CHOI FOOK-SANG

IN THE COURT OF APPEAL

1995, No. 278

(Criminal)

________________

J U D G M E N T

________________

Mortimer JA (giving the judgment of the Court): On 24 March 1995 the applicant was convicted after trial by Deputy Judge Chu in the District Court of one offence of conspiracy to manufacture false passports, contrary to s.71 of the Crimes Ordinance, Cap.200 and one offence of conspiracy to accept an advantage contrary to s.4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201. He was sentenced to 3 years on the first charge and 10 months on the second charge concurrent. He now seeks leave to appeal both convictions and sentence.

The facts

2. A woman ICAC officer pretending to be called 'Ah Ngor', an illegal immigrant in need of travel documents to remain in Hong Kong, was put in contact with one of the other conspirators. Another ICAC officer posed as her boy friend and met that conspirator. It is not necessary to go into detail. Arrangements were made to provide that lady with a false Hong Kong passport to travel to Cambodia and a further forged Honduran passport on which she could return. They were in different and false names. Money was provided to the conspirators and photographs of 'Ah Ngor' were provided.

3. At a later stage the applicant came into the picture, assisting the other conspirator and asking for payment in order that a friend in the Immigration Department should affix to one of the passports the necessary chop. In due course they were all arrested. The evidence consisted of tape recordings of conversations, and reported conversations with that ICAC undercover officer together with - so far as this applicant is concerned - some documentary evidence of the money changing hands.

The application against conviction

4. The applicant seeks to present an appeal against conviction on this basis. It is a strange fact that the applicant made a complaint to the Immigration Department as long ago as 30 July 1992. Consequently the ICAC started the investigations. The investigations proved that this applicant was one of the conspirators.

5. He did not raise this at trial. He did not tell his lawyers about it either and he now wishes to apply to give evidence himself about it. It is not necessary to deal with this save peremptorily. It appears from the submissions that consequent upon not telling his lawyers, the applicant gave lying evidence to the court, which not surprisingly, was not believed. If he had told his lawyers about this matter, it is highly likely that he would have been advised to plead guilty and put forward a mitigation. There are absolutely no grounds upon which this Court could possibly accept further evidence in these circumstances. There are hardly any circumstances in which this Court will allow an accused person to choose not to advance a defence at trial and then seek to advance it before the Court of Appeal. There are some circumstances, but they are very limited indeed and this is not one of them.

6. The application for leave to appeal against conviction is therefore refused.

The sentence

7. We turn now to the application for leave to appeal against sentence.

8. There are two points advanced. First, a change in family circumstances outlined to us by Mr Poll. This is a matter which of course concerns the court on a human level, but there are very few occasions when personal circumstances of this nature will lead to a reduction in sentence. It is a tragic thing that usually punishment falls upon families more heavily than upon a convicted person.

9. We turn to the other matter.

10. As has been outlined in the open court, since conviction the applicant has given considerable assistance to the ICAC about other matters. The consequence is that 30 suspects have been arrested recently and 33 forged passports have been seized. One of the cases which will be brought to court will be a conspiracy leading to a High Court case. When a person gives assistance of this nature, the court will recognise that assistance. But the matter is not complete. Assistance is continuing and it is likely that the applicant will give evidence in court.

11. Usually when those circumstances arise, the court will not interfere with the sentence, but will indicate that the proper course is for the applicant himself to make representations to the Executive, after the assistance to be given is complete. That course is not appropriate in this particular case because of the length of sentence passed and the amount which the applicant has already served. So, in this case, we think it right that he should be given credit for the assistance that he has already given. That leaves it open - if it is appropriate - for him later to seek a further reduction from the Executive if he is still serving a sentence.

12. Giving full weight to what he has already done, we think it right in the circumstances to give him leave to appeal against his sentence, to treat this application as the appeal itself and to reduce the sentence of 3 years on the 1st charge to one of 2 years imprisonment. That is the order of the court. The other sentence will stand and will be served concurrently.