HKSAR v. FU WING HARP

CACC287/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 287 OF 1998

(ON APPEAL FROM DCC 1392 OF 1997 AND 98 OF 1998)

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J U D G M E N T

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Chan, CJHC (delivering the judgment of the court) :

1. The Applicant pleaded guilty before the District Court to one count of conspiracy to possess an unlawfully obtained travel document, contrary to Section 42(2)(c)(i) of the Immigration Ordinance, Cap. 115 and Section 159A(1)(a) of the Crimes Ordinance, Cap. 200. He was sentenced to 1 year imprisonment. He now applies for leave to appeal against sentence.

2. According to the prosecution case, the Applicant approached the co-conspirator who is the 1st Defendant in the case, to look for a BNO passport at a price of HK$3,500.00. The 1st Defendant then made arrangements and obtained a BNO passport which was later handed to the Applicants in return for the money.

3. The Applicant submits that the sentence is too heavy and that the District Judge had failed to take into consideration his personal circumstances. He tells this court that his wife is in poor health and her condition has now become deteriorated since his imprisonment. She is not able to look after his aged and blind father and their six year old daughter. Another circumstance relied upon by the Applicant is that if he is sentenced to imprisonment, the application for emigration of his family to the United States will not succeed. He also says that his sentence when compared with that of the other Defendant is too heavy.

4. The District Judge adopted a starting point of 2 years and having considered the Applicant's family background as gathered from a probation officer's report reduced the sentence by 8 months for the plea and another 4 months for his reasonable background and his not having committed any offence for quite some time. The ultimate sentence is therefore 1 year. When he sentenced the Applicant, the Learned Judge considered the intention of the legislature and the seriousness of the offence. He said at p.12 of the transcript:

"I have already stated but repeat that the legislature has fixed a mamixum sentence of 14 years for this offence and that there is no guideline sentence, although those who seek to facilitate unlawful internaitonal travel must expect an immediate custodial sentence if caught and convicted. Of course this pays heed to the gravity of the offence which, if permitted to go unchecked, would play havoc with the controls imposed on travel between one country and another. The Defendant's role puts him squarely in the category of such an offender."

5. We agree with the comments made by the Learned Judge. This type of offence is serious and thus calls for an immeidate custodial sentence unless there are exceptional circumstances. We do not accept that the Applicant has any exceptional circumstances. His wife's poor health and his father's condition have been there before he committed the present offence. Up to now, there is still no explanation as to why he had to approach the other Defendant to purchase a BNO passport. It would be naive to accept that he simply did it for his friend. The Learned Judge had given the Applicant discounts which are more than generous. As the Judge said, the Applicant's family will not suffer further financially if he is in prison for they have already been receiving social welfare benefits. We see absolutely no merit in this application which must be dismissed.