THE QUEEN v. TONG HUNG-HONG

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HEADNOTE

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FORGED TRAVEL DOCUMENT - SENTENCE - APPELLANT FLEEING CHINA TO ESCAPE PROSECUTION FOR POLITICAL ACTIVITY - COURT SHOULD NOT CONSIDER MERITS OF PROSECUTION.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 891 OF 1990

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JUDGMENT

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1. The appellant pleaded guilty to possession of a forged travel document, contrary to section 42 (2) (c) (i) of the Immigration Ordinance, Cap. 115, and was sentenced to 18 months imprisonment.

2. He was intercepted by an Immigration Officer at Kai Tak while in transit from China to Manila. He produced a Singaporean passport in the name of another person, but was found to be in possession of a Chinese Resident Card.

3. He told the officer that he had paid $80,000 for the passport in China and admitted he was aware that, apart from the photograph, the personal particulars did not relate to him.

4. Unusually, in this type of case, the appellant was fleeing from China on account of impending prosecution. His father had been a senior official in the Communist Party and he himself operated a substantial trading business in Wai Chow. However, last year he participated in the student demonstrations and also contributed 10,000 RMB to the democracy movement.

5. This political activity brought him to the notice of the authorities. His business licence was cancelled and he was arrested for supporting the "anti-revolutionary movement". He was released on the equivalent of bail because of his father's former position. He fled to Shanghai and Beijing and eventually managed to obtain the forged travel document and leave China before he was re-arrested. Apart from his father he left behind his wife and young son.

6. The appellant was unrepresented when he first appeared in court - before Mr White. He pleaded guilty and the case was adjourned for a Probation Officer's report. It was adjourned again in order to allow the appellant's solicitor to obtain the Chinese warrant of arrest. He then came before Mr Meredith, who heard the whole story and then proceeded to sentence on the basis that it was true.

7. The magistrate took 18 months as his starting point but found that there were no mitigating circumstances. In particular he decided that it was not open to him to consider the merits of the Chinese prosecution, or to reduce the appropriate sentence because of speculation about the appellant's future.

8. Mr Alderdice, for the appellant, initially submitted that some reduction should have been made for the exigency produced by the appellant's political activity. But he later accepted that magistrates would be placed in an intolerable situation if they had to pronounce upon such matters. The magistrate was clearly right in his approach to this aspect of the case.

9. He also cannot be faulted for taking 18 months as his starting point. In this he was following the Court of Appeal decisions in R. v. Yu Wing-wut  Crim. App. No. 346/84 and R.v. Wang Ju-wen Crim. App. No. 272/88, although the  latter was a more serious case, involving the multiple use of two passports.

10. The magistrate however does not appear to have given the appellant any credit for his guilty plea, nor for the fact that he was a transit passenger.

11. There is however another matter, which was not before the magistrate. His wife is expecting a child in November. Additional evidence has been received on appeal, which establishes that, on 14th May, she was three months pregnant. The appellant deposes by affidavit that he did not raise this point below because Mr White had indicated that he would receive less than 18 months if he could prove political persecution. It was for this reason that the mitigation before Mr Meredith was based on the political factor.

12. Of course the appellant was well aware of his wife's condition when he decided to leave China and, as mitigation, it is thereby devalued. Nevertheless, looking at the appellant's situation now, it must carry some weight.

13. Having regard to all these matters, I think the proper sentence is 12 months. As an act of mercy, however, I reduce this to nine months, which, assuming he has earned full remission, will allow for his release in October and his return to China in time for his wife's confinement.

14. The appeal is allowed to that extent.