THE QUEEN v. JIANG SHOU-FA

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JUDGMENT

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Mortimer JA (giving the judgment of the Court): On 18 June 1996 the applicant, who is a resident of Bolivia pleaded guilty before Her Honour Judge Beeson to one offence of possession of 13 BNO Passports, one British Dependent Territory Passport and two Singaporean Passports, and one offence of conspiring to possess 6 PRC Passports, 3 BNO Passports and 2 British Department Territory Passports, all those passports were forged. He was sentenced to a total of 5 years imprisonment. He now seeks leave to appeal against that total sentence.

2. There was a third count in the indictment but that was left on the file.

The Facts

On 15 April 1996 a parcel was sent by a man called Liu from Brazil addressed to the applicant. It contained the forged passports in the 2nd charge. It was intercepted. Five days later, on 20 April 1996, the applicant was stopped at Kai Tak as he was leaving Hong Kong for Guangzhou. He was taken back to his flat in Golden Lion Garden, Shatin and the forged travel documents in count 1 was found in his briefcase. Also in his briefcase was equipment suitable for forging passports, together with 470 blank Brazilian visas and 960 stamps for duty.

3. When interviewed, the applicant admitted:

At trial

4. When he appeared before the District Court judge, the applicant advanced a number of matters in mitigation which he also relies upon today through his counsel, Mr Graham Harris. Those matters are:

The sentence

5. The judge, having taken those matters into account and explained in some detail the serious nature of the offences, took as her starting point for the first offence, 6 years imprisonment and on account of the mitigation reduced that sentence to 4 years. On the second offence, she took 5 years as her starting point, which she reduced to 3 years. Considering the totality of the sentences, she ordered that 12 months of the sentence on charge 2 be served consecutively with that on charge 1, making a total of 5 years.

The application

6. Mr Harris submits that the sentence is manifestly excessive and also he submits that the judge's approach to the totality of sentence was in error. He contends that:

The judge's approach

7. The issue for this Court is whether the overall sentence of 5 years was manifestly excessive in the circumstances. But first we must examine whether the judge's approach was correct. On this, we accept the submission of Mr Harris, with which Mr Bruce for the Crown agrees, that the judge's decision to pass consecutive sentences for the two counts was in error. It would have been more appropriate to consider concurrent sentences for the two counts as they were part of the same criminal activity, to determine an overall starting point after trial, and then to give credit for the mitigating circumstances. We propose to assess the sentence in that way.

Conclusion

8. In considering the case afresh, the earlier cases to which our attention has been drawn are of little, if any, assistance. This is a more serious case of its kind than any which has yet been before the court so far as we are aware. The facts easily demonstrate that. The applicant was a party to sophisticated international crime which attacks immigration systems and control, and also the integrity of passports as international travel documents. The number of passports involved - 16 in one count and 11 in the other - is significant. The applicant's part is demonstrated by the other materials suitable for forging passports found in his briefcase at his flat. It follows that a lengthy sentence with a deterrent element is entirely justified in this case.

9. But having said that, we are of the opinion that in the manner in which she approached the sentence, the judge misled herself into reaching a higher sentence than she would otherwise have been passed. In our view, the proper starting point in this case after trial - bearing in mind such mitigation factors as there are which impinged upon sentence at that stage - is in the region of 6 years but certainly not less than 6 years. For his early plea and cooperation, the applicant is entitled to a reduction of the conventional one-third. The sentence in this case, we think, ought to have been 4 years concurrent on each count.

10. In those circumstances we allow the application for leave to appeal against sentence. We treat the hearing as the appeal. We allow the appeal. We quash the sentences imposed. We impose a sentence of 4 years on each count, concurrent.