THE QUEEN v. LIE KWET TJOEN

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JUDGMENT

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Macdougall, J.A.:

1. This is the judgment of the court.

2. The applicant who is a citizen of Indonesia was convicted on his pleas of guilty by Deputy Judge Muttrie in the District Court on one charge of being in possession of a forged travel document contrary to section 42(2) (c) (i) of the Immigration Ordinance and of three charges of being in possession of a forged die contrary to section 76 of the Crimes Ordinance. He was sentenced to 18 months imprisonment on each offence. The deputy judge ordered that the sentences for the forged die offences were to be served concurrently with each other but consecutively to that imposed in respect of the forged travel document offence. The overall sentence was thus one of 3 years imprisonment. He now seeks leave to appeal against sentence.

3. The circumstances of the commission of the offences were as follows. On the 15th March last year when the applicant arrived at Kai Tak Airport on a flight from Guangzhou on his way by connecting flight to Singapore he produced his valid Indonesian Passport to an Immigration Officer at the transfer desk within the arrival hall. Certain matters not concerned with the passport itself aroused the officer's suspicions, and as a result the applicant was taken to an interview room where his luggage was searched.

4. The outcome was that he was found to have in his possession a Thai passport from which the original holder's photograph had been removed and that of the applicant substituted for it. Two forged Hong Kong immigration stamp impressions bearing the numbers 1789 and 1874 were endorsed on the passport.

5. A bank statement which was found in his luggage and which gave particulars of his local address enabled the Immigration Officers to conduct a search there in the company of the applicant. This in turn led the officers to a nearby address at which the applicant had left a briefcase in the care of another person. After the applicant had refused to disclose to the officers the number of the combination lock of the briefcase they forced it open and discovered two rubber stamps both bearing different numbers but each purporting to be stamps of the kind that are endorsed on a visitor's travel document on his arrival in Hong Kong and which specify the period for which he is permitted to remain here.

6. Two other stamps each purporting to be those that are endorsed on a traveller's travel document when he or she departs from Hong Kong were also found in the briefcase. Unlike the first two stamps these bore the same number. It is in respect of the first two stamps that the first and second charges concerning possession of forged dies arose; the remaining charge concerned the other two stamps.

7. The officers also discovered in the briefcase three Thai Immigration rubber stamps, one Indonesian Immigration rubber stamp, two People's Republic of China rubber stamps, two British (Hong Kong) passports, one People's Republic of China passport, some stamp pads, date chop barrels and ink. However, no charges were preferred in relation to these items. Fingerprints lifted from both the exterior and interior of the briefcase were subsequently found to be those of the applicant.

8. In the lower court counsel then representing the applicant cited to the deputy judge the case of The Queen v. GAFNI ZVI ,[1989] HKLR 167. However the deputy judge expressed the view that that case was of no assistance to him. With this we would entirely agree. We wish to emphasise once again that that case was of a wholly exceptional nature and must be regarded in the light of its highly individual facts.

9. Indeed this court made it plain in GAFNI ZVI and in other decisions that each case must be dealt with on its own facts. We take the opportunity of repeating what was said by Hunter J.A. in The Queen and WAN Ho-hung Criminal Appeal 342 of 1988:

"Finally there is one observation that we desire to make. Both applicants have sought to rely upon other decisions of different courts and sometimes of this Court by way of comparables. There is now conveniently set out in the current edition of Archbold in paragraph 7-63 at p.987, a citation from a judgment given by Dunn LJ, in England in the case of R v. De Havilland (1983) 5 Cr App R(S)109, 114 in which he points out that there are occasions when the criminal division of the Court of Appeal in England lays down sentencing guidelines. Those cases are useful authorities which can and should be cited to both trial judges and to appellate courts for their assistance. But in the vast bulk of cases decided in the courts the decisions represent the particular sentencing court's attempted to deal with the special fact of the offences and the offenders which appear before it. Constant references to those decisions is frankly of very little assistance indeed. The most it can do is to give an overall impression as to the total range of sentences imposed for particular types of offences. It gives neither the sentencing court, nor the appellate court, any real guidance as the appropriate position in that range for the applicant or defendant standing before it. A great deal of time can be wasted in this court by reference to a string of cases of that nature."

10. The deputy judge stated that he considered that the proper approach was that adopted in WAN Ho Hung and The Queen v. YU Wing-wut, Criminal Appeal No. 346 of 1984 in which this court approved of sentences of 18 months imprisonment after pleas of guilty in respect of cases involving the use of forged travel documents. The deputy judge observed that the use and possession of such  documents should be treated equally.

11. Mr Macrae, who appeared for the applicant in this court but did not do so in the court below, submitted that by equating possession with use the deputy judge failed to bear in mind that the forged Thai passport had been found in the applicant's possession while he was in transit and that it had not been used either to enter or to depart from Hong Kong at any time. He also submitted that the overall sentence of 3 years was manifestly excessive or wrong in principle or both.

12. Depending on the circumstances of the case there may well be instances in which it can properly be said that the use of a forged travel document is deserving of a heavier penalty than that which should be imposed for mere possession of it. We note however that in respect of penalty section 42 of the Immigration Ordinance makes no distinction between possession of and the use of a forged travel document.

13. The explanation advanced on behalf of the applicant in the court below as to the reason for his possession of the forged passport and the dies was that by using a Thai passport on his frequent departures from his native Indonesia he would not be liable to payment of the US$150 departure tax levied on Indonesians. This explanation, it was urged, placed the applicant's offences in a far less serious category than that into which they would have fallen had he formed part of a syndicate.

14. We agree that a person who is a member of a syndicate engaged in the business of supplying false and forged passports to those who are prepared to pay for such a service is deserving of a heavier sentence than a person who has such a passport for his own use. But the fact that a defendant has obtained an offending passport in order to evade payment of a departure tax in his native country or for some other personal reason does not constitute a mitigating factor. As Fuad, V.P. said in giving the judgment of the court in The Queen and WANG Ju-wen, Criminal Appeal No. 272 of 1988:

"We are firmly of the view that the mere fact that a defendant is a businessman who would not be able to do business so conveniently abroad 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."

15. Fuad V.-P. then went on to echo what had been said in several other cases that it is right to stress the importance of bearing in mind the responsibility of Hong Kong to other countries in relation to their travel documents and the use to which they are put. It is hardly necessary to say that we entirely endorse that view.

16. The argument advanced by Mr Macrae that the forged passport was merely used in transit rather than to enter Hong Kong and is therefore deserving of a lesser penalty does not commend itself to us.

17. What we have to decide in the circumstances of this case is whether the overall sentence of 3 years imprisonment is manifestly excessive. While we think that a sentence of 18 months imprisonment for the offence of being in possession of the forged Thai passport was well merited, we have come to the conclusion that, since the applicant's purpose for being in possession of the forged dies was to effectuate his use of that passport, the concurrent sentences of 18 months imprisonment for the forged die offences combined with an order that they be served consecutively to that for the forged passport offence resulted in an inordinately high overall sentence. We therefore grant the application and, treating it as the hearing of the appeal, allow the appeal. The sentence of 18 months on each of the forged die offences is quashed. We substitute a sentence of 6 months imprisonment for each of these offences and order that those sentences be served concurrently with each other out consecutively to the sentence on the forged passport offence. The overall sentence will therefore be one of 2 years imprisonment.