HKSAR v. WOO SHUN CHEONG AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 120
(Criminal)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. Both Applicants were charged in the District Court with a conspiracy to make false instruments, contrary to s.71 and 159A of the Crimes Ordinance, Cap. 200 and processing implements for making false instruments, contrary to s.76(1) of the same ordinance. The 1st Applicant pleaded not guilty to the conspiracy count and guilty to the possession count. The 2nd Applicant pleaded not guilty to both counts. After a trial before Deputy Judge Poon the 1st Applicant was found guilty on the first charge and the 2nd Applicant on both charges. They were both sentenced to a total of 2 1/2 years imprisonment.

2. The 1st Applicant seeks leave to appeal against the sentences imposed upon him and the 2nd Applicant originally sought leave to appeal against both convictions and the sentences which were imposed but has now abandoned the application to appeal against conviction.

3. The Applicants ran a business as travel agents trading under the style France Travel Agency. The 1st Applicant had originally run the business. There was however evidence that he wished to make an application to the government for public housing and it was agreed that the business should be registered at the Business Names Registry in the 2nd Applicant's name. She was the only employee in the business.

4. As a result of a complaint made by officials in the United States Consulate a search was conducted at the 1st Applicant's residential premises. Nothing incriminating was found. The 1st Applicant agreed to a search being conducted at the business premises. Various seals and headed notepaper were found which were consistent with the complaint being made by the United States Consulate.

5. Very briefly when an application is made to the United States Authorities for a non-immigrant visa by a person who it is thought does not have strong ties to Hong Kong, there is a requirement that a letter be tendered by the applicant's employers stating that he is so employed and that he has been granted permission to make the proposed visit.

6. It was the prosecution case that the 1st and 2nd Applicants had agreed that for varying amounts of payments they would issue letters which purported to show that persons applying were in gainful employment with the company referred to when this was not the case. These letters had in a number of cases been instrumental in leading to applications for non-immigrant visas being granted. The conspiracy continued for about 15 months.

7. Both Applicants made cautioned statements after their arrest. In very general terms the 1st Applicant claimed that when persons applying for non-immigrant visas approached the firm and did not have the requisite letter he would supply them with blank sheets of headed notepaper and they would then write the letters and sign them. The 2nd Applicant admitted that she was the manager of the business but did not admit to either the conspiracy or the possession of the articles. She did however admit that she had made a contribution towards the capital of the firm.

8. At the trial a number of the clients who had been assisted by the Applicants gave evidence which clearly supported the prosecution case. They gave this evidence after they had received immunities from prosecution.

9. There was also evidence that the typewriter which had been used to process a number of the applications was the typewriter used by the 2nd Applicant.

10. Both Applicants went into the witness box and gave evidence. The 1st Applicant gave evidence approximately in accordance with what he had said in his cautioned statement. The 2nd Applicant attempted to distance herself as far as she could from the firm. She claimed not to be able to speak or write English and put all of the blame on the 1st Applicant. She said that she had only been acting upon his instructions and had been unaware that any offences had been committed.

11. In fairly lengthy Reasons for Verdict the Judge gave reasons why she rejected the Applicants' testimony and accepted the evidence of the prosecution witnesses.

12. The 1st Applicant applies for leave to appeal against sentence. There are essentially two grounds of appeal advanced. The first is that the starting point of 3 years imprisonment was manifestly excessive. Mr. Luk for the 1st Applicant attempted to make out this contention by referring to two other cases. It has to be said that each case is different and usually little assistance can be derived from a comparison of sentences imposed in other cases. It simply has to be said that these offences were serious ones, particularly the conspiracy count. A starting point of 3 years imprisonment was not excessive.

13. The 2nd matter raised by Mr. Luk was the age and physical condition of the 1st Applicant. He was aged 77 at the time of conviction and suffers from circulatory and prostate problems. It is evident that his condition can be adequately dealt with in prison. The Judge did however give a six-month discount to reflect these matters which in the circumstances was generous.

14. The way that the Judge dealt with sentence was to adopt a three-year starting point for both offences and then pass sentences concurrently as the matters referred to were common to both charges. She then went on to give the Applicant the usual 1/3 discount for his plea on the second count and a 6-month discount on the first count as earlier indicated. This was a fair way to deal with the matter as the plea of guilty on the second count did not in fact save much time as it was necessary for the prosecution to prove the first charge which clearly would have been the matter requiring most of the time and effort necessary.

15. Mr. Wan on behalf of the 2nd Applicant also complained that the starting point was too high. He attempted to justify this by submitting that the consequence of providing the spurious letters had not been serious. This is to entirely miss the point. It was for the United States Authority to determine what measures were required to check the bona fides of persons applying and it was indeed a serious matter to manufacture false documentation.

16. The other point emphasised by Mr. Wan was the relatively minor role assumed by the 2nd Applicant. This was not the finding of the Judge. She was satisfied that the 2nd Applicant's role was by no means insignificant. Mr. Wan also called in aid the fact that the 2nd Applicant had been looking after her aged mother. In an offence of this nature this was not a matter which could weigh heavily in the balance.

17. What is clear is that the Judge did give the 2nd Applicant 6-month credit for her lesser role in these offences and her previous good character.

18. We do not consider that the sentences imposed in either of these applications were excessive or wrong in principle and these applications are dismissed.