HKSAR v. CHU PING SHEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.51
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant pleaded guilty to one count of conspiracy to make false instruments contrary to s.71 and s.159A of the Crimes Ordinance, Cap.200. It was particularized that he and Cheung Li-kit (D2), on divers days between 11th August and 12th September 1997, conspired together with persons unknown, to make false instruments, namely a false Hong Kong identity card, Hong Kong passport, Japan tourist visa and China Two-way permit, with the intention that they be used to induce somebody to accept them as genuine. The applicant was sentenced to 2 1/2 years and he now seeks leave to appeal against that sentence.

2. I will read the facts in full as it is important that their full import be appreciated. They reveal that two undercover police officers, a male and a female, were posing, in August 1997, as overstayers from Mainland China. They met two men, one of whom was D2, who identified himself as Ah B, on 11th August in a flat in New Lucky Mansion, Jordan Road. The male officer ("the officer") introduced himself and his fellow officer, who he said was with his girlfriend, and said that they had come to Hong Kong on two-way permits in March 1997 and that their permits had already expired. He added that they had been overstaying in Hong Kong since then. D2 asked if they wanted a passage to Japan. The officer replied in the affirmative. D2 said there would be no problem arranging for them to go to Japan and the fee would be $300,000 and that this amount would cover the provision of a Hong Kong identity card, a Hong Kong passport, Japanese Tourist visa, China two-way permit and the escort service from Hong Kong to Japan. D2 asked the officer where he was staying to which he replied that they were staying at a relative's home. D2 then wrote his contact paging number on a piece of paper and gave it to the officer. D2 then jotted down the officer's paging number for future contact. He said that he would page the officer on 13th August and would bring another man to discuss the means and expenses of the arrangements for the passage to Japan.

3. After further contacts, a meeting was held at about 7:40 on 20th August. The officer arrived at Café de Coral at Parkes Street, Yaumatei and was joined by D2. D2 then took him to the Golden Harvest Restaurant in Jordan Road. At about 8:45 p.m., the applicant arrived and joined D2 and the officer. He did not identify himself by name but he told the officer that he was the second defendant's boss. He asked PW1 if he wanted to go to Japan and when the officer replied in the affirmative he said it would cost $300,000 for each person for a passage to Japan and that 40% was to be paid in advance as deposit. He went on to say that he would arrange the necessary travel documents and to discuss the financial arrangements.

4. We can now move to the evening of 12th September when a police ambush was set and the applicant and D2 were arrested when delivering the first of the forged documents - a Hong Kong identity card. So much for the facts.

5. The trial judge, when sentencing, said:

"That conspiracy involved offering to supply to two persons who, unknown to you, were undercover police officers posing as mainland overstayers, four documents in return for a sum of $300,000. By the time of your arrest, only $8,000 had been paid and only one document delivered - that forged identity card - but there is no reason to think that both defendants and their co-conspirators did not intend to provide the remaining documents in return for a substantial sum of money.

I am satisfied that the starting point for sentence if you had been convicted after trial should be not less than 4 1/2 years' imprisonment, although this starting point should be a little less for the second defendant who is less culpable than the first, because although he was the front man in the deal, he was clearly directed by other conspirators.

Your counsel have offered matters to be considered as mitigation of your offences and I turn first to the mitigation for the 1st defendant. It has been submitted that you are entitled to a discount of your sentence because the persons you dealt with were agents provocateur. I accept this submission because on two occasions the undercover police officer did take the initiative to keep the deal going. I will discount your sentence, D1, by 12 months in that respect. You are also entitled to a discount of your sentence because of your plea of guilty, and it has been put forward that I should also consider the fact that you have not offended for some 10 years before this case. That merits some small recognition. For those two factors combined, your sentence is further discounted by 12 months.

I have not accepted that your sentence should be further discounted for the fact that you have made a statement to the police, intending to provide assistance. It is entirely a matter for speculation whether that will, in fact, provide any assistance at all for the statement has not yet been verified.

D1 is sentenced to 2 1/2 years imprisonment on charge 1."

6. We are satisfied that 4 1/2 years was an entirely proper starting point. This was a very serious conspiracy with international ramifications. It involved forgery of identity cards, passports and visas. A discount of one year WAS given upon the basis that agents provocateurs were involved.

7. We think it proper to make some general observations on the use of undercover police officers to trap offenders. Police undercover operations can, broadly speaking, be divided into two kinds. The first occurs when undercover agents provoke an offender into committing an offence which, but for the agent's action, would, or probably would, never have taken place at all. Such actions are properly described as the actions of an agent provocateur. It is, however, quite otherwise where police officers set a trap to snare criminals who have every intention of committing an offence of the kind for which the trap is set. Such a trap is a perfectly legitimate operation. Serious offences might go undetached if such tactics were not employed by law enforcement officers. Of course the two kinds of undercover operations at times merge one into the other. That was not so in the present case. Here the defendants were clearly intent upon committing offences of the kind for which they were apprehended. The suggestion that these offences were in any way provoked by the actions of the undercover police officers is wholly wrong. The "initiative" they took was necessary to uncover the extent of the offences and did not, in any way, redound to the benefit of the offenders. They were not entitled to any discount for entrapment.

8. It is complained that the judge was wrong to find that D2 was less culpable than the applicant. Given the applicant's admission that he had said that he was D2's "boss", we find no fault at all in the trial judge's finding that D2 was less culpable than the applicant.

9. When coming to our decision in this matter, we have taken into account matters canvassed before us in camera. The 12 months for the element of entrapment was, we are satisfied, quite wrong. No discount should have been given. The 12 months for the plea of guilty, it is true, given the way in which the judge made his assessment, fell short of the normal one-third discount for plea. When assessing sentence we give credit for the matters canvassed in camera, and for the guilty plea but bear in mind that there was no entitlement to a discount for entrapment. Having done so, we are satisfied that the sentence of 21/2 years was in no way either manifestly excessive or wrong in principle. That being so, the application for leave to appeal against sentence is refused.