R. v. DAI MING HE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 145 OF 1995

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J U D G M E N T

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1. On 30th December 1994 at Western Magistrates' Court, the Appellant pleaded guilty to two charges. The first was using an unlawfully obtained travel document, and the second was making a false statement in a document furnished to an immigration assistant. He was sentenced to 6 months' imprisonment on each charge concurrent. He now appeals against his sentences.

2. The brief facts, which the Appellant admitted, are that he is Chinese. While he had been on holiday in Bangkok, he had bought a Malaysian passport in someone else's name for $15,000.00. His photograph was substituted for the photograph already in it. When he arrived in Hong Kong by train from China, that was the passport which he presented. He also presented a completed immigration arrival card in which he had falsely stated that he was the person whose name appeared in the passport.

3. Section 42 of the Immigration Ordinance (Cap. 115) creates a number of offences relating to the possession and use of forged, false and unlawfully obtained travel documents. Such offences were said by the Court of Appeal in Wang Ju-wen [1989] 2 HKLR 26 to be prevalent in Hong Kong. The gravamen of using a forged passport, as Cons J.A. (as he then was) observed in Yu Wing-wut (CA 346/94), is the need "to preserve comity between nations", and in the case of a forged Hong Kong passport "to maintain for the benefit of all its citizens the good name of Hong Kong abroad". Moreover, there is the additional need, noted by Bewley J. in Bhagwant Singh-Padda (MA 1447/88), to "indicate that the Hong Kong courts are alive to the dangers of tolerating unauthorized use of travel documents in the present era of worldwide terrorism".

4. In Bhagwant Singh-Padda, after a review of the relevant authorities, especially those since Yu Wing-wut, Bewley J. said this :-

"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 forged passport by persons unconnected with Hong Kong or China."

In Sakattar Singh (MA 402/92), I said that I agreed with that analysis. In my view, Bewley J.'s remarks apply equally to forged passports and to an unlawfully obtained passport which has been altered as in the present case.

5. The present case falls into the second category. It was said in Wang Ju-wen at p. 29I that "the mere fact that a defendant is a businessman who would not be able to do business so conveniently abroad ... unless he used a false passport cannot be regarded as a mitigating factor". The magistrate does not state in his Statement of Findings what sentence he took as his starting point, but allowing for the Appellant's pleas of guilty the magistrate must have had in mind a starting point in the region of 9 months' imprisonment on the first charge. I do not think that such a starting point would have been excessive, and subject to the Appellant's mitigation a sentence of 6 months' imprisonment on the first charge in view of his plea of guilty was, in my view, entirely appropriate. I agree with the magistrate that any sentence imposed on the second charge should be served concurrently with the sentence on the first charge: after all, the Appellant committed the second offence in order to avoid being caught committing the first offence.

6. The question, therefore, is what effect should be given to the Appellant's mitigation. He is 29 years old and he has no previous convictions in Hong Kong. His mitigation to the magistrate was that he had a business in China, and that he obtained the passport to enable him to conduct his business in Hong Kong. He asked the magistrate not to sentence him to terms of imprisonment of immediate effect because otherwise he would not be able to pay his employees their wages. According to the Record of Proceedings, he claimed to have had a liver condition, and that he had to look after his elderly mother who was suffering from diabetes.

7. Mr. Toby Jenkyn-Jones for the Appellant tells me that the true circumstances of the Appellant's reason for being in Hong Kong were not explained sufficiently to the magistrate. He was not in Hong Kong to do business. He was simply stopping off in Hong Kong for three days to arrange for his flight to Bangkok for which he already had a ticket. His business was in Thailand and Malaysia. I do not regard that as significant mitigation. True, he was not intending to stay in Hong Kong for long and was not intending to work in Hong Kong, but his case cannot be equated with transit passengers of the kind to which Bokhary J. (as he then was) was referring in Garcia [1990] 1 HKLR 599.

8. However, Mr. Jenkyn-Jones also told me that, in one respect, things have changed significantly since the Appellant's arrest and conviction. His mother's medical condition has worsened. She has, since his arrest and conviction, been admitted to the Shantou Municipal Centre Hospital, where her condition is described as critical. That appears from a notarised certificate to that effect, the authenticity of which Mr. Wesley Wong for the Crown does not seek to challenge. Although the sentences which the magistrate imposed were, in my view, entirely warranted on the material which was then before the magistrate, I am prepared to reduce the Appellant's sentences to enable him to see his mother before she dies, bearing in mind that her condition has only worsened since he came to Hong Kong. I propose therefore to substitute for the sentences imposed by the magistrate concurrent sentences of 4 months' imprisonment on each charge. To that extent, this appeal is allowed.