THE QUEEN v. HO YEUNG YAU AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.690 OF 1993

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J U D G M E N T

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1. This is an appeal against sentence only. Both appellants pleaded guilty to two offences each, namely using an unlawfully obtained travel document and making a false statement to the Immigration Officer. They were both sentenced to 12 months imprisonment for the passport offence and 6 months for the false statement offence, both sentences to run concurrently. They now appeal against these sentences.

2. The facts of this case are simply. Both appellants were Chinese nationals. They left China using their valid passports issued by the People’s Republic of China. They went through Vietnam and arrived in Cambodia. There they bought two Kampuchean passports for RBM60,000. They used these Kampuchean passports to enter Thailand where they obtained visas to enter Hong Kong on the basis that they were Cambodian nationals. They arrived in Hong Kong with these passports and completed their arrival cards with their false identities. They intended to stay in Hong Kong for a few days before returning to China. They were detained and charged with these offences.

3. The learned magistrate in his Reasons for Sentence said that this type of offence was by no means unusual. He referred to the Court of Appeal decision in R. v. Wang Ju-wen, unreported, Crim. App. No.272 of 1988 and other cases which, he said, had laid down a guideline sentence of 18 months imprisonment for such offences after plea. He reminded himself that this guideline was not meant to be a strait-jacket and that each case must be considered on its own facts. He took a starting point of 15 months imprisonment and gave an allowance of 3 months on the basis that each of the appellants intended to leave Hong Kong after a few days.

4. Leading counsel for the appellants relied on two grounds of appeal. First, he submitted that the learned magistrate was wrong in saying that there was a guideline of 18 months imprisonment for this type of offence. Second, he submitted that the sentences ought to be reduced on humanitarian grounds. He informed me that both appellants’ respective mothers were seriously and critically ill in China and that their conditions had further deteriorated upon being told of the appellants’ pedicament in Hong Kong. Counsel produced before me a bundle of documents which purported to be medical reports and statements issued by the relevant hospitals and doctors regarding the conditions of the two elderly ladies and correspondence from China. Counsel pointed out that under the relevant provisions of the Immigration Ordinance, the maximum sentence for this type of offence was 2 years. Furthermore, he referred to a number of authorities regarding similar offences in which the courts made references to the appropriate sentences.

5. In the case of Wang Ju Wen, the Court of Appeal had looked at a number of cases on this type of offence. Fuad, V.-P. said at page 6 as follows:-

“Certainly these sentences vary greatly in their severity but the lists with which we were provided contain no facts about the offences, nor do they explain the circumstances in which they were committed, and so they are of little value to us.”

He also said that:-

“The Court in Gafni Zvi was at pains to emphasise that each case must be judged in the light of its own facts.”

Counsel submitted that the Court of Appeal in the Wang Ju Wen case did not lay down any guideline. I was also referred to the case of Yu Wing Wut, unreported, Crim. App. No.346 of 1984 where the Court of Appeal was of the view that the appropriate sentences for this type of offence would be about 18 months. Finally, counsel referred to the case of Bhagwant Singh-Padda, unreported, Mag. Crim. App. No.1447 of 1988 where Bewley J., towards the end of his judgment, said:-

“Although these cases indicate that there is apparently no tariff sentence for this offence and each case must be judged on its own merits, they seem to fall into four categories:-

1.         The passport forgery business, which is the most serious form of the offence,

2.         Use of false passports by persons seeking to leave China via Hong Kong,

3.         Repeated use of false passports by businessmen travelling in South East Asia,

4.         Isolated use of a false passport by persons unconnected with Hong Kong or China.”

6. Counsel submitted that although these four categories were not meant to be exhaustive, the present case did not fall into any of these categories. Counsel for the Crown argued that although the learned magistrate might appear to be technically wrong in saying that there was such a guideline, the sentences imposed were not in any way excessive.

7. I would agree that the authorities did not set any guideline as to the sentences to be imposed for this type of cases. In fact, the Court of Appeal had repeatedly said that each case had to be decided on its own facts. It does seem therefore that the learned magistrate was, with respect, not correct in saying that there was such a guideline. On the other hand, the authorities indicate to me that the normal sentences for this type of offence vary greatly between 6 months to 18 months imprisonment. The sentence imposed by the learned magistrate, that is 12 months, is well within the “range”. He cannot be said to be in any way wrong or excessive. Although in setting himself a guideline, the learned magistrate might have subconsciously started a little too high, I do not think that I should interfere with the sentences faced by these appellants on this ground alone.

8. Counsel then submitted that because of the special circumstances in this case, namely the critical conditions of the appellants’ ailing mothers, the court should seriously consider reducing the sentences on humanitarian grounds. I was referred to the following authorities: Li Kin Chung, unreported, Mag. Crim. App. No.1374 of 1989; Cheung Siu Min, unreported, Mag. Crim. App. No.1538 of 1990; Chan Chung Ho, unreported, Mag. Crim. App. No.60 of 1991; Poon Kam Hung, unreported, Mag. Crim. App. No.365 of 1991 and Mik Lam, unreported, Mag. Crim. App. No.430 of 1993. In these cases, the Appellate Court had accepted that there were special or humanitarian grounds and ordered the immediate release of those appellants. Counsel urged that I should adopt the same approach here. Counsel for the Crown informed me that the Crown was not in a position to either verify or contradict the documents produced by the appellants.

9. I must say that I find it rather surprising that both the appellants happened to have their elderly mothers falling critically ill at more or less the same time. This is certainly a strange coincidence. On the other hand, these documents do appear to me to be official documents coming from the respective hospitals in China. So while I find the situation rather suspicious, I would reluctantly accept these documents. If the appellants' mothers were really in the conditions as these documents said they were, I think that there are strong grounds for me to tamper justice with mercy in respect of these appellants. While the sentences imposed by the learned magistrate can in no way be described as excessive, I would reduce the sentences purely on humanitarian grounds. Counsel informed me that the two appellants had been in prison for a little over 3 months. I would, therefore, allow the appeal and reduce the sentences to 6 months for the passport offences in respect of both the appellants.