THE QUEEN v. WONG CHUNG HON

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAGISTRACY APPEAL NO. 1051 OF 1990

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BETWEEN

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JUDGMENT

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1. On 2nd July 1990, the appellant was convicted on his own plea in Central Magistrates Court on three charges under section 42 of the Immigration Ordinance, Cap.115, Laws of Hong Kong. The A charge related to possession of unlawfully obtained travel documents, namely ten unlawfully obtained travel documents in the names of himself and the five other members of his family. The B charge related to the using of an unlawfully obtained travel document for the purposes of Part II of the Immigration Ordinance and related to the 10th June 1990 when he used his own passport to travel between Hong Kong and Macau. The C charge related to the use of the same passport by the appellant when he came back from Macau to Hong Kong.

2. The facts of the case which were admitted by the appellant before the Magistrate were as follows :-

3. Mr Stephen Lau who represented the appellant before the Magistrate urged the Magistrate to take a lenient view on the basis of the fact that he was 56 years of age, had been in Hong Kong for 15 years, that his offences were commited out of foolishness and for travel convenience. He also made reference to the fact that 1997 was coming. He stressed the appellant's co-operation with the police and the fact that in 1987 he had financial problems and his company had closed down and that he was heavily in debt. He stressed the fact that he had always been an upright citizen.

4. The Magistrate's record indicates that he took into account Court of Appeal guidelines as to immediate custody and he passed sentences of 6 months' imprisonment on all three charges to run concurrently.

5. On the 10th July 1990, the appellant was represented by Mr Jimmy Kwong applying for review but the Magistrate refused to vary the sentences he imposed.

6. In his reasons for sentence, the Magistrate states that he accepts the following mitigation :-

 

        The Magistrate went on in his reasons for sentence :-

"Case law demonstrates that immediate custodial sentences can be expected for offences of this nature. There will be exceptional cases but, with regret, I could not find this to be one. It was urged on me that the fact that the defendant was a Hong Kong citizen mitigated the offences and did so to the extent of justifying suspended sentences. The basis of the argument was that no prejudice accured to Hong Kong and that the only wrong done was to promote corruption in another country. The cases demonstrate that one of the important factors in sentencing such cases is a regard for, and a need to protect, the comity of nations. In my judgment this principle defeated the argument.

 

It was urged that the case of a Hong Kong citizen being so convicted was rare, and that the element of deterrence, the protection of the comity of nations and the public policy element in sentencing was accordingly diminished. Given the nature of the offences detention usually occurs whilst the defendant is travelling abroad and hence the courts normally deal with foreign nationals. More significantly the element of rarity has to be balanced against the potential mischief : the temptation to Hong Kong residents, (who may fear the future and have no entitlement to overseas residence) to purchase false travel documents is obvious. That temptation is not likely to diminish in the next few years. The sanction has to be such as to discourage those minded to act so. I judged that punishment short of immediate imprisonment would be no sanction.

 

From the mitigation and from what I saw of the defendant in court I was sure that he was a decent man who acted as he did out of a fear for his family in the future. I gave as much weight as I could to such matters and I passed the least sentence I believed proper. I had to remember that it was people like this defendant who were likely to behave in such a way and that an evenhandedness of approach was called for. I could not in all conscience make an exception of this defendant."

 

7. The perfected grounds of appeal against sentence are that :-

"The sentence is manifestly excessive in the circumstances in that :

 

8. Mr Kwong who represents the appellant on this appeal. has referred me to the case of The Queen v. Wang Ju-wen (1989)2 H.K.L.R. 26, which is the leading case on sentencing for offences under section 42(2)(c) of the Immigation Ordinance. He stresses that the Court of Appeal accepted that each case must be judged in the light of its own facts. He stresses that the appellant was not charged with possession of forged passports, and also points out that all the cases referred to foreign nationals and not Hong Kong residents. He says all the cases were involving foreign people using foreign passports. He urges this court to take the view that the facts in the present case are unique. At one stage, he even went so far as to suggest that a layman would not think there was anything wrong with what the appellant had done. However, he did accept later on that it was clear from the admitted facts that the appellant knew fully well what he had done.

9. In my view, the Magistrate cannot be criticised in any way in respect of the sentence which he imposed. He was not wrong in principle in imposing an immediate custodial sentence. In a recent case, Magistracy Appeal 409 of 1990 The Queen v. Weng En-xing and others, Mr Justice O'Connor on the 10th July, 1990 made reference to some of the previous decisions as follows :-

"I have been referred to a number of cases as to what are appropriate sentences. The seminal case is the Court of Appeal decision R.v. Yu Wing-wut. Crim. App. No. 346 of 1984 which pointed to a sentence of 18 months imprisonment being appropriate for what could be described as the usual run of the mill case. That case was; referred to with apparent approval by the Court of Appeal in R. v. Gafni Zvi [1989] 1 HKLR 167 though in that case the court, for reasons described in R. v. Wang Ju-wen [1989]2 HKLR 26 as due to its 'unusual facts and because a material fact which influenced the sentencing court had not been clearly explained,' reduced the sentence to 9 months imprisonment. Those remarks should be borne in mind by those who seek to rely on R. v. Gafni Zvi.

 

In R. v. Wang Ju-wen [1989] 2 HKLR 26, the Court of Appeal again indicated approval for R. v. Yu wing-wut, that for the normal case a sentence of 18 months imprisonment is appropriate. Of course the facts of each case and each defendant have to be given distinct and separate consideration when arriving at an individual sentence. However these cases are of a kind in which the facts are often more or less stereotyped, without any valid grounds for distinguishing for purposes of sentencing. In such circumstances significantly differing sentences have an appearance of arbitrariness. Similar cases should be dealt with in a similar manner.

 

It has been submitted to me that the case of these appellants differs from the usual case in that these appellants had not used the forged passports in Hong Kong, that they had not used them to transit or try to transit Hong Kong. That is correct. However that is more than offset by the fact that they came to Hong Kong for the purpose of procuring false passports, entered Hong Kong as transit passengers, which they were not as they did not then have onward tickets, and in Hong Kong they procured the forged passports. They used Hong Kong as a source and collecting point for forged Passports.

 

Furthermore I do not accept it as a mitigating factor that the offences were aimed at Holland rather than at Hong Kong."

He went on to dismiss appeals against sentences of 18 months imprisonment.

10. The legislature makes no distinction between sentences imposed for possession of forged passports and possession of unlawfully obtained passports. Clearly the mischief is that a person in possession of such a passport, whether it is forged, or whether it was unlawfully obtained, is in possession of a document or is using a document which entitles him to travel freely between one country and another which, if the true facts were known, he would not be permitted to do.

11. It would appear to me that the magistrate has allowed his sympathy for the appellant and the appellant's family to reduce the sentence quite substantially from what might be considered the normal sentence for this type of offence.

12. I cannot say that the sentence is manifestly excessive. Neither can I say that the magistrate erred in principle in deciding to impose an immediate custodial sentence.

13. In the circumstances, the appeals against sentences are dismissed and the sentences confirmed.