THE QUEEN v. GAFNI ZVI

IN THE COURT OF APPEAL

1988, No. 229

(Criminal)

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J U D G M E N T

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Silke, V.P.:

1. The Applicant appeared for trial before Judge Downey in the District Court on a Charge Sheet containing 8 charges. At the outset, he pleaded guilty to charges 2 and 3 these were possession of a very small amount of cannabis and possession of apparatus for its use. He was fined a total of $700 and no exception is taken to that.

2. The first day of the trial was taken up with some form of contest as to the contents of caution statements made by the Applicant of this it is sufficient to say that the contest appears to have been used to bring matters personal to the Applicant to the Court's attention. The voluntary nature of those statements was, as we understand, not in issue. With this we are not concerned.

3. On the morning of the second day, after the defence had requested that the charges be put again and fresh pleas taken, the Applicant Pleaded guilty to charges 1, 6 and 8. No evidence was offered on charges 4 and 5 - these concerned a Bolivian passport - and on charge 7, which was a form of alternative charge to charge 6. On them the Applicant was acquitted.

4. The first charge concerned a false Singapore Passport in the Applicant's name found in his residence in Discovery Bay. The sixth chase concerned five false Philippine passports found In his possession at his business office and the eighth charge concerned a stun gun also found at his business place.

5. He received sentences of 2 years' imprisonment on each of the first and the sixth charges concurrent and 3 months, also concurrent, on the eighth charge. This last sentence is no longer the subject of an application.

6. He now seeks leave to appeal against those sentences on the grounds that they are in what are said to be the particular circumstances of this case manifestly excessive and wrong in principle.

7. The Applicant was arrested on 19th December 1987 as he was leaving Hone Kong for Macau. He is an Israeli citizen and he possesses a genuine, current Israeli passport.

8. His home and his office were searched and the passports, the subject of the charges, were found. In addition to the five Philippine passports were also found documents and photographs relating to the purported holders.

9. There is no evidence that any of the passports had been used for entry to or exit from Hong Kong. The Singapore passport was used by the Applicant for entry to China as were the false Philippine passports by their purported holders.

10. The four Philippine passports with the serial number starting with F were on genuine passport paper but were illegally obtained. The fifth, not of the series, was an altered Philippine passport originally issued to a Philippine citizen. The Singapore passport is completely false. All contained visas for, a China visit and the Philippine passports had been used for trips to Bejing on 22nd and 27th November 1987.

11. It was urged upon the Court below and upon us that all these Passports were obtained for what might be termed diplomatic reasons - Israel has no diplomatic relations with China and it is therefore difficult for its citizens to travel there on their own Israeli passports.

12. Both the Applicant and the five who used the false Philippine passports had business dealings in China and at the invitation of a Chinese organization. The Applicant used the Singapore passport for the purpose of his visit. He was simply holding the Philippine passports in safe keeping for further visits should they be necessary. The additional documents which were found were held for the purpose of obtaining visas for such visits.

13. From authorities drawn to his attention, the trial judge took the view that sentences for this type of offence ranged between 18 and 30 months imprisonment.

14. We have also had cited to us a number of authorities, both of this Court and of the High Court sitting on Magisterial Appeals Mr. Cagney, who appears for the Crown, has produced a list of recent sentences in a Magistrates Court - where this offence is normally dealt with. None of them are of any real assistance in the circumstances here. The range disclosed runs from a fine through a sentence of, imprisonment suspended to 2½ years' custodial imprisonment. From this it is difficult to discover what the tariff is. This is not the case upon which to base any guidelines which might assist courts who may, in the future, deal with this type Of offence.

15. However, it should be noted that another division of the Court, in R. v. Yu Wing Wut, C.A. 346 of 1984 (unreported), where the applicant had pleaded guilty to possessing a forged travel document a forged Hong Kong British Passport which he had used in an attempt to leave Hong Kong - and to remaining in Hong Kong illegally, stated that the appropriate sentences were eighteen months and six months respectively. This decision may not have been drawn to the attention of those courts who sentences were not within similar range.

16. While the trial judge noted the various matters drawn to his attention in mitigation he was not impressed. He felt that the only really mitigating factor was the pleas of guilty. The personal particulars of the Applicant were drawn to his attention as they were, indeed, to ours. He is 36, he has married to a lady of Hong Kong Origin and has two children, aged 5 and 3. He was educated in the United States of America - where he graduated from a University. He has worked in United States and in Hong Kong and he has now set up his own business in Hong Kong where he has lived for some years.

17. The trial judge took notice of these as we do. He was however influenced by one matter which, unfortunately, was not made sufficiently clear to him. This is the usage of the Singapore passport by the Applicant. We are told, and accept, that this came into the Applicant's hands in 1986. He used it only for visits to China. The passport did however contain entries which suggested that it had been used, prior to 1986, for travel to other countries with which Israel has diplomatic relations. Had it been made clear to the trial judge that this travel did not have relevance to the Applicant - these entries possibly being on the passport to provide verisimilitude - he might well have given greater weight to the Applicant's explanation as to why he possessed it.

18. The trial judge said, and quite rightly, that these are not technical offences. The maximum sentence provided by the legislation is 14 years' imprisonment. While the Applicant did not have these passports for the purpose of forwarding an illegal passport racket nevertheless the possession, and indeed the use, of false passports does affect the comity of nations and the Applicant was involved to the extent that he was a customer of the racketeers.

19. That having been said we are of the view that the trial judge started at much too high a point in considering sentence in the unusual circumstances of this case. We agree that custodial sentences are necessary and proper to deter the use of such documents and to punish those who are found guilty of this type of offence. But we emphasise that each case must be judged in the light of its own facts.

20. Bearing in mind all the circumstances here and that which Mr. Corrigan has urged upon us on behalf of the Applicant we think that the public interest would be served by the imposition of a period of imprisonment in a term of 9 months.

21. The sentences on Counts 1 and 6 are therefore set aside and there is substituted for them a term of 9 months on each charge concurrent.

22. We give leave, treat the hearing as the hearing of the appeal and allow the appeal to the extent indicated.