THE QUEEN v. YU WING-WUT

----------------------

Headnote

----------------------

Sentence for possession of forged passport varied to 18 months' imprisonment.

__________

JUDGMENT

__________

Cons, J.A.:

1. The Appellant pleaded guilty in the Kowloon District Court to possession of a forged travel document, contrary to Section 42(2)(c)(i) of the Immigration Ordinance, Cap. 115, and to remaining in Hong Kong after having landed unlawfully without the appropriate authority, contrary to Section 38(1)(b) of the same Ordinance. He had been arrested while attempting to leave for the Philippines from Kai Tak Airport when he presented a genuine Hong Kong British Passport from which the original photograph had been removed and his own substituted in its place. He had apparently then been in Hong Kong for some ten days.

2. The learned judge below passed a sentence of three years for possession of the false passport and of one year for the unlawful remaining. Miss Pinto who appears for the Appellant has drawn our attention to several cases in which lesser, or even suspended sentences, have been passed for similar offences, but the reports do not give sufficient detail to allow us to draw assistance from them.

3. On the other hand a useful starting point is to be found in Criminal Appeal 934 of 1981 in which this Court, on the 4th January 1982, approved four sentences of imprisonment, each of fifteen months, for the possession of forged identity cards. Counsel for the Crown observes that forgery of a Hong Kong Identity Card would not entail the possibility of any international repercussion. There is need, he says, to preserve comity between nations and to maintain for the benefit of all of its citizens the good name of Hong Kong abroad. These considerations weighed heavily with the judge below.

4. We accept that the considerations are not without force. At the same time we do not think they justify an increase of more than two times. Appropriate sentences in the circumstance of this case would in our view be eighteen months and six months respectively.

5. The learned judge ordered the sentences to run concurrently. He must have taken the view that they formed part and parcel of one transaction. With respect we do not think that is so, although it would be fair to assume that the Appellant had never intended to remain here for very long and that some overlapping is justified.

6. For these reasons we allow the application for leave to appeal; treat the application as the hearing of the appeal; order the sentence on the first charge to be reduced to eighteen months' imprisonment and that on the second to be varied to six months' imprisonment, three months of which are to be concurrent with the sentence imposed on the first charge and three months to be consecutive thereto.