HKSAR v. XU YONG BIAO

CACC 404/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 404 OF 2000

(ON APPEAL FROM DCCC 688 OF 2000)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 20 September 2000, the Applicant, aged thirty-one, was sentenced by Her Honour Judge Toh to a total of five years' imprisonment for the 23 offences on the charge sheet to which he pleaded guilty. 11 charges related to the use of a forged travel document, namely a Canadian passport bearing the Applicant's name, contrary to section 42(2)(b) and (4) of the Immigration Ordinance, Cap. 115. Each of these offences, which were reflected in the charges bearing the odd numbers between 1 and 21, was paired to an evenly numbered charge between charges 2 and 22 of making a false representation to an immigration assistant to the effect that he had Canadian nationality, contrary to section 42(1)(a) and (4). These 22 charges in total arose from the Applicant's entry into and exit from Hong Kong on various dates between 12 June 1999 and 26 June 2000. Charge 24 related to the Applicant's possession at the time of his arrest of a false Quebec driving licence, contrary to section 75(2) of the Crimes Ordinance, Cap. 200.

2. The Applicant was arrested on 26 June 2000 as he attempted to enter Hong Kong through the airport by presenting the forged Canadian passport to an immigration assistant (charges 21 and 22). Subsequent inquiries revealed that the Applicant had used this passport on a total of eleven occasions since 12 June 1999 either to enter or to leave Hong Kong.

3. The Applicant now seeks leave to appeal against his sentence on the grounds that the sentence was manifestly excessive and wrong in principle.

4. We can say in regard to the second ground that this is misconceived. The judge made no error in her decision that a prison sentence was the only proper means of dealing with this case.

5. The sole question we need to consider is whether, having regard to all the circumstances, the sentence was manifestly excessive.

6. The way in which the judge arrived at the total sentence of five years' imprisonment was to take twenty-seven months as a starting point for each of the odd numbered charges between 1 and 21, all of which related to the use of the false passport. Despite the fact that the Applicant only pleaded guilty to these charges at the end of the prosecution's case, three days after the trial had commenced, the judge somewhat curiously stated that she would give a full one-third discount, leaving eighteen-month sentences on each of those charges. Taking the same route in relation to all the charges with even numbers between 2 and 22, the judge took a starting point of nine months and then made a reduction to six months for the pleas which were eventually entered. As to charge 24 (an alternative to charge 23), the Applicant pleaded guilty to this at the outset of the trial. The judge again took a nine-month starting point and reduced it, having regard to the plea, to six months' imprisonment.

7. The judge then considered totality. She passed concurrent sentences of eighteen months' imprisonment on charges 1 to 4, and also on charges 5 to 8 which were ordered to run concurrently with the sentences on charges 1 to 4. Similarly, the eighteen-month sentences on charges 9 to 14 were made to run concurrently to each other, but she ordered that the total of eighteen months imposed on these charges should run consecutively to the sentences on charges 1 to 4. The concurrent sentences of eighteen months the judge then imposed for charges 15 to 18 were ordered to run concurrently with the other sentences. Later, the concurrent sentences of eighteen months on charges 19 to 22 were ordered by the judge to run "consecutive to the total sentence in charge(s) 1 to 4".

8. Although it was not clearly stated, it seems that the judge had intended to say that these sentences should be consecutive to the other consecutive sentences she had imposed. Only in this way could three batches of eighteen-month sentences bring the total, as the judge later stated, to "fifty-four months". The Applicant was lastly ordered to serve a further six months for the offence disclosed in charge 24, making five years in all.

9. It is apparent from the facts before us that the Applicant, who had no criminal record in Hong Kong, had purchased the forged passport for US$8,000. It appears he had emigrated to the United States of America with his family in 1987. Although he was in possession of a Green Card and a Re-entry Permit issued by the United States Government, he had not achieved the status of a citizen of the United States of America. It was in these circumstances that he was using the forged Canadian passport to facilitate his entry to Hong Kong and also to the Mainland where he had business interests.

10. In this context, we have been helpfully reminded by Mr Simon Tam, on behalf of the Respondent, of what Fuad VP in R v Wang Ju-wen [1989] 2 HKLR 26 at p. 29, said:

"The case before us is a serious one of its kind - the applicant was found with two false passports and had used them on many occasions when arriving in Hong Kong. He was given visas for longer stays than his true status justified. We are firmly of the opinion that the mere fact that a defendant is a businessman who would not be able to do business so conveniently abroad (by reason of what Mr Corrigan called 'bureaucratic delays') unless he used a false passport cannot be regarded as a mitigating factor. Of course, it might be an aggravating factor if it could be established that the passport was used to further a criminal enterprise."

11. The facts in Wang Ju-wen bore close similarity to those in the matter presently before us. Late pleas of guilty were also entered in Wang Ju-wen's case, and the court refused leave to appeal against the sentences of eighteen months for the two offences of possessing false or unlawfully obtained travel documents. The sentence which was eventually arrived at in that case was twenty-four months. This took into account three charges of using the travel documents.

12. We are satisfied that the judge selected a perfectly proper starting point of twenty-seven months for each of the forged passport offences in this present case. Indeed, Mr Chandler does not seek to argue otherwise. No doubt this was in the light of what was said in HKSAR v Pak Wan-lung CACC 573/1998 (unreported) where Liu JA, after a brief review of a number of sentences imposed in cases of this kind, said that the court could see "no justification for not selecting also a starting point of twenty-seven months".

13. In passing, we should say that Liu JA went on in Pak Wan-lung to say that the appellant in that case should have been given by the sentencing judge some discount "for his then offer to assist the authority". Clearly, this was in error as a vast weight of authority demonstrates. Credit should, of course, only be given by a court when an offer to assist has produced some tangible result. An offer to assist cannot, by itself, justify a discount. In fact, by the time Pak Wan-lung's appeal was heard, he had given evidence against his co-accused and was, by then, deserving of a discount which he was duly given.

14. In the present case, we have had little difficulty in deciding that the Applicant's sentence, taken overall, was manifestly excessive. Indeed, Mr Tam for the Respondent has very responsibly accepted this, not merely today but in his characteristically able and forthright written submissions. Plainly, the Applicant had to be given a greater sentence than he would have received for a single offence, but we consider that three consecutive eighteen-month sentences, which the judge intended to impose for the Applicant's persistent use of the same forged passport, was too great a penalty when his purpose in travelling was to conduct lawful business. There is no suggestion that the Applicant was travelling for purposes connected to any criminal enterprise.

15. In all the circumstances, bearing in mind the lateness of the pleas and the many other factors to which we have referred, we think a total sentence of thirty months was merited for the forged passport offences having particular regard to their multiplicity.

16. We propose, therefore, to grant leave and treating the hearing as the appeal, we shall order that on charges 1 to 14 the sentences imposed by the judge should remain unaltered save that they should all run concurrently, making a total on those charges of eighteen months' imprisonment. On charges 15 to 22, again the sentences which the judge imposed will remain unaltered as to their length, but they should all run concurrently to each other, making in total eighteen months which is to be served consecutively to the extent of twelve months only to the combined sentence of eighteen months on charges 1 to 14, making thirty months in all. On charge 24, we shall order that the sentence of six months, having regard to totality, will run consecutively to the extent of four months only.

17. The appeal succeeds to the extent that the total sentence of five years imposed in the court below is reduced to a total of two years and ten months.