HKSAR v. YAU KWONG YUEN

HCMA268/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 268 OF 1999

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J U D G M E N T

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1. The Appellant was convicted after trial of possession of a forged travel document and was sentenced on 10th February 1999 to 18 months' imprisonment. He now appeals that sentence.

2. The facts which the Magistrate found to be proved were that the Appellant on 17th October 1998 was intercepted at the boarding gate of a flight to Vancouver in company with a mainland resident. The Appellant had handed to the check-in staff at the airport his passport and that of the person he was accompanying, the passport for that other person being a forgery.

3. The Appellant had in his Cautioned Statement admitted that he had gone to Shenzhen to pick up the other man who was named "Su", that he and Su met a friend of the Appellant at a restaurant and a forged Hong Kong passport was given to Su. The Defendant said that he had been invited by a friend to escort Su to Canada. His trip and accommodation would be paid for and he would be remunerated on his return. He was clearly, therefore, with the knowledge that Su had a forged passport, he knew that he was escorting a person who was not entitled to use that passport out of Hong Kong through immigration and to Canada and he did so for payment. The Magistrate said in his Reasons for Sentencing :

"This case was rather more serious than usual since the defendant was clearly involved in a sophisticated organisation arranging the movement of persons from China to Canada with forged papers."

4. Mr Sadiq concedes that he was a member of such an organisation but urges upon me that his role within that organisation was a lesser one. That was taken into account by the Magistrate in his level of sentencing. The Magistrate was told that the Appellant had a clear record and took this into account when he considered whether or not to convict. He also took into account the lack of propensity of the Appellant to commit the offence. When it came to sentencing, however, it is clear from his Reasons for Sentence that the Magistrate did not take into account the fact that the Appellant is 46 years of age, has been resident in Hong Kong for that period of time and has a clear record in the territory.

5. This is not, in my view, within the class of cases where a clear record has little or no effect because the offence is so serious. Whilst I accept fully that this is a very serious offence and would echo the word of Cons, J.A., as he then was, in Yu Wing Wut CA 346 of 1984 of the need "to preserve comity between nations and to maintain for the benefit of all of its citizens the good name of Hong Kong abroad." I am of the view that the Magistrate arrived at the correct sentence for those matters which he took into consideration, but that the sentence should have been reduced to some degree for the clear record of the Appellant.

6. That being so, the appeal is allowed and the sentence of 16 months' imprisonment is substituted in lieu of the sentence imposed by the Magistrate.