ATTORNEY GENERAL v. LAU YUK KEI

IN THE COURT OF APPEAL

1996, No 1
(Application for Review)

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J U D G M E N T

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Bokhary, J.A.:

1. This is an application by the Attorney General for a review of sentence. It comes to us from the District Court where the respondent, a businessman in his late 30's, who fell to be treated as a man of good character because his previous brush with the law was so minor and so stale, appeared before HH Judge Surman on a charge sheet containing three charges.

2. On December 22 last year, he was convicted after trial on all three charges, and was sentenced to one year's imprisonment by way of concurrent terms of that duration on each charge.

3. The 1st charge was of possession of a forged certificate of identity, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap. 115. The particulars of offence read:

" LAU Yuk-kei, on the 25th day of September, 1995, in Hong Kong, had in his possession a forged certificate of identity. XXXXXXX(X) issued on 8th October 1991."

4. Turning to the 2nd charge, it was of aiding and abetting the possession of a forged certificate of identity, contrary to section 89 of the Criminal Procedure Ordinance, Cap. 221, and section 42(2)(c)(i) of the Immigration Ordinance. The particulars of offence read:

" LAU Yuk-kei, between 17th & 26th day of September, 1995, in Hong Kong, did aid and abet KWOK Siu-kam to possess a forged certificate of identity XXXXXXX(X) issued on 8th October 1991."

5. Finally, the 3rd charge was of aiding and abetting, counselling and procuring the making of a false representation to an Immigration Assistant lawfully acting under Part II of the Immigration Ordinance, contrary to section 89 of the Criminal Procedure Ordinance and section 42(1)(a) of the Immigration Ordinance. The particulars of offence read:

" LAU Yuk-kei, on the 26th day of September, 1995, in Hong Kong did aid and abet, counsel and procure KWOK Siu-kam to make a representation, knowing the same to be false or not believing the same to be true, to an Immigration Assistant lawfully acting under Part II (Immigration Departure Examination) of the Immigration Ordinance, in that, he aided and abetted counselled and procured the said KWOK Siu-kam to represent that she was departing Hong Kong to Guangzhou by flight CZ 302."

6. Shortly stated, the facts are these. Miss Kwok came to Hong Kong from China on a two-way permit. She wanted to travel to Japan. But she lacked a travel document for that purpose. The respondent came upon the scene; and he: (i) got hold of a forged certificate of identity; (ii) gave it to Miss Kwok; and (iii) told her to misrepresent to those on duty at Immigration that she was flying to Guangzhou rather than to Japan, telling her to do that as the best means of avoiding the discovery of the falsity of her travel document, i.e. the forged certificate of identity.

7. That certificate of identity was one which had been stolen from the home of the true holder when her home was burgled. It had been altered so that Miss Kwok's photograph and personal particulars replaced those of the true holder.

8. There is no need to survey the past cases of which there are a great many or to say yet again how serious are offences of this kind. We have considered with care the arguments on both sides, and have come to the conclusion that the most lenient sentence which the judge could properly have passed was one of three years' imprisonment.

9. We are of course dealing with this matter by way of review. But it is no longer the practice of this Court to give an automatic review discount. Such a discount remains appropriate in some case: for example, where a sentence which was not an immediate custodial one is converted on review to an immediate custodial sentence. Another example is where a man is about to be released from custody and then has his release substantially delayed by reason of an increase upon review. The present case is not a case of that kind.

10. Accordingly, the sentence which we impose upon review is one of three years' imprisonment by way of concurrent terms of that duration on each charge.

11. That course is forced upon us by the fact that the sentence passed by the judge was manifestly inadequate and has to be increased on review: in the manner, as we see it, which we have just indicated.