THE QUEEN v. TANK YONG BOA

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J U D G E M E N T

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Fuad, V.-P. (giving the judgment of the Court):

1. These are applications for leave to appeal against sentences imposed upon 3 men and a woman on 13 January 1989 by Judge Evans in the District Court.

2. Tang Yong-boa (D1), a merchant from China aged 39, pleaded guilty to using a forged travel document on two occasions for the purpose of Part II of the Immigration Ordinance, contrary to s. 42(2)(B) of that Ordinance (1st and 2nd charges). He arrived in Hong Kong on 1 December 1989 by air from Japan and presented a Singapore passport bore his photograph but which was not his. He has used this passport to leave Hong Kong for the U.S.A. on 26 March 1988. He told the judge that when he was arrested he was returning to Hong Kong from a business trip in the U.S.A..

3. In his Reasons for Sentence the judge said that he regarded the use of the same passport on those two occasions as one venture and imposed upon D1 concurrent sentences of 18 months imprisonment on the 1st and 2nd charges.

4. Lui Joe-hei (D2), aged 51, is a resident of Hong Kong. He pleaded guilty to aiding and abetting the use of a forged travel document for the purpose of Part II of the Immigration Ordinance, contrary to s 42(2) (b) of the Ordinance (3rd charge) and to possessing 6 forged travel documents contrary to s 42 (2) (c) (i) of the Immigration Ordinance (4th charge). These were 5 Thai passports and one Singapore passport, all in different names.

5. Chow Lee-lee (D3) is a 33 year old illegal immigrant from China. She was jointly charged with D2 on the 3rd and 4th charges. She pleaded guilty to the 3rd charge and the case against her on the 4th charge was not proceeded with. She also pleaded guilty to possessing a forged Singapore passport contrary to s.2(2)(c)(i) of the Immigration Ordinance (5th charge).

6. D2 and D3 arranged for D1 to have the forged passport he used (3rd charge). A safe deposit box in the joint names of D2 and D3 in a branch of the Hang Seng Bank was found to contain the 6 forged passports (4th charge). When D3 was asked by immigration officers to prove her identity he produced a Singapore passport with her photograph in it but which belonged to another woman (5th charge).

7. D2 was sentenced to 18 months imprisonment on the 3rd charge and to 2 years' imprisonment on the 4th charge, the sentences to run consecutively. He is thus serving 3 1/2 years' imprisonment. D3 was sentenced to consecutive sentences of imprisonment of 18 months on the 3rd charge and months on the 5th charge and so she is presently 2 ½ years' imprisonment.

8. Lei Zhen biao (D4) is aged 29. He pleaded guilty to making a false representation to an immigration officer contrary to s.42(1)(a) of the Immigration Ordinance. He entered Hong Kong using a Singapore passport belonging to another man pretending that he was the person to whom it had been issued. This was the same passport D1 later used with a substituted photograph. He told the judge that he had paid US$15,000 for the passport. He was sentenced to 18 months' imprisonment.

9. D2 had been fined $15,000 in 1984 for obtaining property by deception. None of the other applicants has a record.

10. In his full Reasons for Sentence, in respect of D2, the judge observed that the possession of the 6 forged passports (4th charge) was "a separate and distinct offence" from the offence charged in the 3rd charge, adding: ".... those passports no doubt were being stored for supply to customers as occasion demanded." He also said that he had ordered the sentences he had imposed upon D3 to be served consecutively "involving as they did separate and distinct offences."

11. It is contended by Mr. Yau on behalf of D1 that the judge failed to give sufficient credit for his co-operation in the investigation which had resulted in the arrest and prosecution of the other defendants. Mr. Yau also submits that the judge was wrong in saying, as he did, that he could see little to distinguish D1's case from the making of the false representation in R. v. Wan Ho Hung and Another, Criminal Appeal 342 of 1988 (unreported, 30 December 1988) because D1 had used the false passport to enter and leave the U.S.A. only once.

12. Mr. Lugar-Mawson for the Crown very fairly Conceded that D1 had assisted the immigration officers concerned in the investigations. As soon as he was arrested on 1 December 1988 he made a long statement answering very frankly ail the questions put to him. On the following day he was equally frank in answering a number of further questions put to him. On 4 December he gave information not available about D4. It seems most likely that it was his co-operation attitude alone which led to his co-defendants being brought to justice.

13. We do not know in what detail the judge was told about D1's assistance to the authorities but the judge makes no mention of this in his Reasons for Sentence. We are bound to say that in our view this careful judge would undoubtedly have referred to the co-operation of this Applicant had the matter been put properly before him. In our judgment D1 should be given some credit for his co-operation and on this ground alone we allow his application. Treating this hearing as the hearing of the appeal we allow the appeal of D1 to the extent of reducing the sentence imposed upon him from 18 months' to one of 15 months' imprisonment.

14. Mr. Matthews, who appears for D2 and D3, submits that the judge should have imposed concurrent sentences in respect of the charges to which they pleaded guilty since the charges were not in fact separate and distinct. He further contended that if consecutive sentences were right in principle then their totality was excessive; the most D2 and D3 should have received were sentences totalling respectively 2 years (D2) and 18 months (D3).

15. We are unable to agree. We have concluded that the judge was fully justified in the courser that he took. It is sometimes difficult to say at what point a given transaction is complete and another begins but there is no difficulty here on the facts admitted after the pleas of guilty. In our view as regards D2, the 3rd charge and 4th charge were quite separate although they involved the same general criminal activity. The distinct nature of charges 3 and 5 in relation to D3 is even more apparent.

16. Moreover, we are entirely satisfied that the totality of the sentences imposed on D2 and D3 was correct in the light of all the circumstances of the case. Their applications for leave to appeal against their sentences are refused.

17. D4 is unrepresented before us. He told us that men on remand with him had indicated that the usual sentences imposed for the offence to which he had pleaded guilty was between 6 and 9 months. He said that he had a valid passport issued by the Peoples Republic of China and was entitled to enter Hong Kong. He prayed for a reduction in his sentence so that he could look after his aged parents who had no one to care for them. One of his parents was in hospital.

18. We have reached the conclusion that the sentence imposed upon him was not one with which we could properly interfere. D4's application for leave to appeal against sentence is refused.

19. In deciding these applications we considered the decisions of this Court in R. v. Yu Wing Wut, Criminal Appeal 346 of 1984 (unreported, 6 September 1984) and R. v. Wang Ju Wen, Criminal Appeal 272 of 1988 (unreported, 8 September 1988) and R. v. Wan Ho Hung and another, Criminal Appeal 342 of 1988. There is nothing in any of these cases which suggests that the sentences imposed by the judge were wrong in principle or excessive.

20. We take this opportunity of emphasising what Hunter, J.A, had to say in the last mentioned case, based on, Dunn. D.J.'s observations in R. v. De Havilland (1983) 5 Cr. App. R. (S) 109 at about citing appellate decisions on sentence which are not "guideline" cases.