HKSAR v. TAM TZE KAI

DCCC 2/1996

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 2 OF 1996

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REASONS FOR SENTENCE

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THE CHARGE AND THE FACTS OF THE CASE

1.  Defendant, in this case, you were originally facing two charges:  Charge 1 is “possession of a forged travel document” and charge 2 is “aiding and abetting the possession of a forged travel document”.

2.  On 3 November 1995, you were arrested by the Immigration Department and the trial was taking place in the District Court and you pleaded not guilty to the above two charges.  The trial took place between 1  May to 3 May 1996 before His Honour Judge Bailey.  You were present during the trial on those days.  Meanwhile, bail was granted to you and you were required to attend the court until the trial hearing was finished.

3.  On 3 May 1996, after the court ruled that both records of interviews were admissible, your case was adjourned to the next Monday on 6 May 1996. However, when the trial resumed on 6 May 1996, you were absent.  A warrant of arrest was issued by the learned Judge against you.  Since then you could not be found.  Obviously you had absconded.

4.  On 1 June 2004, the District Court decided to estreat your bail money which is HK$10,000.  The Immigration record also did not show that you have left Hong Kong via any immigration checkpoints.  Obviously you have sneaked into the Mainland to escape the justice.  It was not until 22 April 2013 that you decided to return to Hong Kong from the Mainland via the Lo Wu checkpoint and you were intercepted by a police officer whereupon you were arrested for the offence of “failing to surrender to custody as so have been appointed”.

5.  Today the prosecution informed me that as 17 years has elapsed since you absconded, all the witnesses of this case could not be located, including the officers who have been retired and could not be found.  His Honour Judge Bailey of course has also retired long since and back in those days, no audio recording of the proceedings was available and therefore in all practicality, the trial cannot be proceeded further and the Department of Justice came to the view that they have no alternative but to call no further evidence and withdraw the two charges against you and hence both charges were now dismissed.

6.  Instead, they laid an additional charge and it is the 3rd charge of “failing to surrender to custody without reasonable course”, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.  The particulars of offence was that you on 6 May 1996, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as was appointed by a court.  This afternoon, you appeared before me and pleaded guilty to the charge.

7.  According to the summary of facts, this offence came into operation on 18 September 1995.  I therefore consider that this is the proper course to be taken and you were duly convicted. 

Defendant’s criminal record and background

8.  You have two items of convictions involving five charges altogether.  In 1982, there were altogether three charges of “theft from vehicle” and one charge of “going equipped for stealing” for which you were placed on probation for 12 months.  In 1985, you were convicted again for another charge of “theft” for which you were bound over for $300 for 12 months.  These convictions took place a long time ago and in sentencing you, I shall treat you as a person of a clear record.

9.  You are 58 years of age and you have separated with your wife and you have two sons, both should now have reached their maturity.  Before you absconded, you worked as a cook earning about $4,000 per month.  You have only a Form 1 education level. 

10.  In mitigation, Ms Vera Lam, your solicitor, has told the court that your wife had left the family shortly before the trial and left behind two young sons, at that time, aged 2 and 3, who were taken care by your elderly mother. Panicked and confused, you were worried that you would go to jail because of the trial and very foolishly you decided to abscond to China hoping to still be able to earn some money to take care of your sons and your mother.  In 2004, in the Mainland, however, you were involved with a commercial fraud case and you said that the real culprit was your business partner but you were convicted by the Mainland authority and sentenced to 8 years and 1 month’s imprisonment there.  Your mother, after learning the news that you were imprisoned in the Mainland was ill and subsequently passed away.  Since then, you have lost contact with your two sons.

11.  After serving your sentence in the Mainland, you decided to surrender to the local authority voluntarily.  You said you wanted to finalise the matter in one go.  You also want to locate the whereabouts of your two sons and you wish for a family reunion with them.  You submitted two letters of mitigation to the court.  Basically you are asking for a chance to rehabilitate yourself and asked for leniency. 

12.  You were remanded in custody since 22 April and Ms Lam has submitted to court two Court of Appeal cases which deal with the similar offence for which the applicant was sentenced to 4 months and 2 months respectively.  It is not necessary for me to go into the details of these two cases, suffice it to say that the period of abscond in those two cases is far shorter than the period of abscond in your case which is 17 years and the consequences of your abscond cannot also be compared with what had happened in those two cases, which I shall come to later in my reasons for sentencing you.

Sentencing considerations

13.  According to section 9L(3) of this ordinance, any person who commits this offence and on conviction upon indictment is liable to a fine of any amount and to imprisonment for 12 months.  I have considered the submissions made on your behalf by your solicitor, Ms Lam.  The only mitigating factor in your case is your plea of guilty. 

14.  This is one of the worst case of this kind of offence in that because of your decision to abscond from justice for 17 years, you have basically prevented yourself from the full consequences of the trial.  In the trial, the two records of interview which contained your admissions have already been ruled admissible by the trial Judge so in all likelihood, you were going to be convicted.  Since you absconded, the witnesses could not be located and even the trial Judge has now retired, the Department of Justice had no alternative but to withdraw the two charges against you.  This is obviously something which should not happen.  For the offences of the 1st and 2nd charges, in all probability, you would be sentenced to at least 2 years’ imprisonment in total.

15.  As I have said, the maximum sentence for this additional offence is only 12 months so you should consider yourself very lucky.  This is obviously something which cannot be encouraged, otherwise the wrong message would be sent so that many a defendant would consider to become a fugitive from justice in order to avoid his punishment by the law.  I did not come to any view as to whether you were properly convicted by the court in the Mainland or not.  This is obviously a matter totally beyond my jurisdiction and my knowledge of the Chinese Law.  In any event, this was your decision to abscond to the Mainland and what happened there to you was basically as a result of your remaining in there so you just have to accept your fate and to face the consequences.

16.  I therefore consider that this is one of the few cases where the only suitable sentence is one of the maximum penalty.  I will, therefore use 12 months as a starting point.  Because of your plea, you will still be entitled to a one-third discount and in the end, you are therefore sentenced to 8 months’ imprisonment.