SECRETARY FOR JUSTICE v. TSUI KIM-MING, SIMON

IN THE COURT OF APPEAL

Application for Review

1997 No.4

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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 is an application for review brought by the Secretary for Justice. The respondent faced five charges of aiding and abetting the use of an unlawfully obtained travel document and five of aiding and abetting the use of an identity card relating to another person. He pleaded guilty to one of the travel document charges and one of the identity card charges. At the respondent's request, the remaining eight charges were taken into account for the purpose of sentencing.

2. The facts were set out by the trial judge when sentencing was as follows: In the evening of 16^th October 1996, the respondent and a Madam Cheung Heung-lan approached the Immigration Departure counter at Hong Kong International Airport posing as husband and wife. Madam Cheung presented for clearance a British passport and a Hong Kong Identity Card, both in the name of Jenny Lee. Jenny Lee, the genuine holder of the passport and the identity card is, in fact, the wife of the respondent and is a U.K. resident. Madam Cheung was an illegal immigrant from China was intending to leave with the respondent to take up residence in England. The Immigration Officer, having compared the photograph on the identity card and the appearance of Madam Cheung, was suspicious. He caused a check to be made with the Registration of Persons records and it was confirmed that Madam Cheung was not the genuine holder of either the travel document or the identity card. Both the applicant and Madam Cheung were then arrested.

3. The charges to which the applicant pleaded guilty related to that incident. The respondent admitted that there had been four other similar occasions between May and August 1996 when the applicant had accompanied four illegal immigrants to England using, on each occasion, the same travel and identity documents.

4. When sentencing, the trial judge said:

"The offences were committed with planning and organization. I consider that, had I only been dealing with the 9th and 10th Charges, 18 months would have been an appropriate starting point. However, since there are another 8 charges covering 4 previous occasions and in order to reflect the multiplicity of offences, I would adopt an overall starting point of 2 years.

The 2^nd Defendant is aged 33. He is married with a 5 years old son. The whole family are resident in the UK. He and his wife have been operating a fast food shop in England for about 9 years with an annual net income of about 16,000 GBP. He had a clear record.

The 2^nd Defendant had pleaded guilty. His counsel, Mr. Ng, informed me and I accept that the 2^nd Defendant had intended to admit the charges right from the outset. The pleas were, however, not tendered purely to await confirmation of legal opinion. I also give him an one-third discount for his pleas.

I also accept counsel's submissions that the 2^nd Defendant had been co-operative with the authorities after his arrest. Not only did he admit the offences involving the 1^st Defendant, but he had also made confessions under caution relating to the other charges. There is no doubt that his admissions from the key evidence against him on the other charges.

It was submitted in mitigation that the 2^nd Defendant succumbed to the recruitment of the snake-head and took part in the crimes as a result of the financial crisis he encountered. I was told that he had lent $50,000 GBP to a friend for starting a wine bar business in Ireland. The friend, however, disappeared with the money, leaving the 2^nd Defendant to pay up the rent and other expenses incurred for the intended wine bar. He therefore agreed with the snake-head, whom he had known for a year, to help escorting Chinese illegal immigrants from Hong Kong to England. He had in the past refused to take part in the scheme. He was paid 1,500 GBP for each successful escort. The financial difficulties faced by the 2^nd Defendant, while affording an explanation for the commission of the offences, are not mitigating factors. The resort to crime in times of financial hardship is not to be condoned by the Court. What I do recognize and take into account for sentencing is that he does have a family and a young child who are partially dependent upon him for support. I also note that it is common ground between the prosecution and the defence that the 2^nd Defendant's wife had no knowledge of the illegal use of her travel and identity documents.

It was further submitted that the 2^nd Defendant only played a minor role in the entire scheme and that the 1^st Defendant could have proceeded for immigration clearance on her own, without being accompanied by him. While recognizing that he was not the mastermind of the scheme and that his role was relatively minor than that of the snake-head, I am of the view that the 2^nd Defendant's involvement had facilitated the implementation of the scheme. He had made available his wife's travel and identity documents. In accompanying the illegal immigrants during immigration clearance and representing them as his wives, the execution of the scheme was also rendered smoother.

Having regard to all of the circumstances, the sentences I pass for Charges 9 and 10 are one of 15 months each. Considering that they fall within a series of transactions, the sentences are to run concurrently.

5. The discount which the trial judge gave amounted, in fact, to 37.5%. The Secretary for Justice now asks that the sentences be reviewed upon the ground that they are manifestly inadequate and wrong in principle. It is submitted that the trial judge wholly failed to give proper weight to the criminality involved in the commission of these offences. The respondent was an essential cog in an international immigration racket. It is submitted that this warranted a sentence substantially in excess of the starting point of 18 months which the judge took for one pair of offences. It is further submitted by Mr. Cross, who appears for the Secretary for Justice that for these offences the legislation stipulates a maximum term of imprisonment of fourteen years, which makes it clear that the Legislature intended them to be regarded as serious offences. He also submits that the judge wholly failed to appreciate the seriousness of the fact that he was being asked to take into account four other sets of criminal offences which were separate and distinct acts involving grave criminality on each occasion. It is also submitted that the respondent should not have been entitled to the discount which he received as the plea was not made at the first opportunity and was, indeed, not made until the matter had been set down and called on for trial. We say immediately that we see the force of these observations.

6. The Secretary for Justice has presented powerful arguments which persuade us that the judge did err when imposing the sentence that she did. These were serious offences. They were premeditated. They were designed to deceive the authorities both in the United Kingdom and in Hong Kong and, in four cases, they did in fact deceive those authorities. There are now four illegal immigrants at large in the United Kingdom. The offences were committed solely for financial gain. In our view one set of such offences called for a period of imprisonment of three years. Taking into account the other offences, the overall sentence should in our view have been one of 4½ years.

7. We take into account that the other four sets of offences came to light because the respondent, upon apprehension, admitted that they had occurred and that there is a possibility that they might not otherwise have become known. Taking into account that co-operation and putting it together with the plea and the other mitigating factors we are satisfied that the respondent can properly be given a one-third discount. The sentence will, therefore, be reduced to one of three years. This, however, is an application to review and the respondent is about to be released. We have been informed that he was to have been released in August, i.e. next month. Because of this, given the obvious mental hardship that a review coming about at the end of a sentence must impose upon a respondent, we are prepared, in accordance with the practice of this court to give a further discount. We think six months is appropriate.

8. The Secretary for Justice's application succeeds. The sentence imposed will be varied, therefore, to one of two years and six months.