THE SECRETARY FOR JUSTICE v. SOLOMON DOMINIC MUSA

CAAR 11/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 11 OF 1999

(ON APPEAL FROM DCCC 264 OF 1999)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 18 November 1999, the Respondent was convicted, following a trial before Judge Muttrie in the District Court, of attempting to transfer a travel document to another, contrary to section 159G of the Crimes Ordinance, Cap. 200, and section 42(2)(a)(ii) of the Immigration Ordinance, Cap. 115.

2. Following conviction, the judge imposed a sentence of three years' imprisonment. The Secretary for Justice (the Applicant) now applies to this court for a review of sentence pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, leave having been granted by the Chief Judge on 9 December 1999.

3. The particulars of the charge which the Respondent faced were that he, without reasonable excuse, attempted to transfer travel documents to Michael Squires, an ICAC Chief Investigator (known to the Respondent as Michael Miller), namely three Sierra Leonean diplomatic passports.

4. The maximum penalty for an offence such as this is imprisonment for fourteen years and a fine of $150,000. An alternative charge of accepting an advantage as an agent, contrary to section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201, was not considered by the judge in his Reasons for Verdict in the light of the conviction on the first charge. We are told that it was this alternative charge carrying a maximum of seven years' imprisonment which was originally transferred to the District Court. The charge to which the Respondent pleaded guilty had been added later to the amended charge sheet which is now before us.

Prosecution's case

5. The Respondent was the Principal Immigration Officer of the Government of the Republic of Sierra Leone. This made him the most senior official in that country's Immigration Department. The allegation against him in brief was that he attempted to sell three diplomatic passports which had been issued in Sierra Leone to an undercover ICAC officer for the sum of US$540,000.

6. The Respondent came to Hong Kong in February 1999, and on 26 February, he met Michael Squires (PW3), a Chief Investigator of ICAC, who was working under the name "Michael Miller". He was posing as a businessman operating a courier service. The Respondent was offering to sell diplomatic passports which would enable the holders of such passports to avoid customs' inspections. PW3 had a concealed tape-recorder to record their meeting at a well known hotel. A second meeting took place a few days later on 3 March in a room at a different hotel which, on this occasion, was video-taped by means of a concealed camera. For part of the time, a third man, who was calling himself "Simon Stone" and who, we are told, was also an ICAC operative, was present as well. Simon Stone had introduced the Respondent to PW3.

7. The judge summed up the background to these meetings, starting with the events at the first hotel, as follows:

"(PW3) told the defendant that he was a businessman, engaged in conveying various articles from Thailand to other places. He understood that the defendant had passports for sale. The defendant confirmed that he had diplomatic passports of Sierra Leone which he was prepared to sell. He said that he was a senior civil servant in Sierra Leone and responsible for issuing passports there. He offered passports for sale at ￡120,000 sterling each. He told the witness that the passports could be used safely because he would make arrangements for the details of the holder to be recorded in Sierra Leone. (PW3) asked if he could make use of false names in the passports and the defendant said that that would be all right. He said that the use of the passports would allow the passport holder to claim diplomatic privilege so that his bags would not be searched."

8. PW3 was then taken to the Respondent's room in the hotel where the Respondent showed PW3 his own service and diplomatic passports, together with a considerable number of ordinary passports and three diplomatic passports. The majority of these genuine passports were in blank form. The Respondent said that he was willing to sell the three diplomatic passports. He showed PW3 a large metal seal which he said he had been given to use in the course of his duties. He undertook to give the seal to PW3 in the event that he bought the passports so that PW3 could complete the passport in any name that was chosen. The Respondent also showed PW3 photocopies of other diplomatic passports which two bankers were said to be buying from him. The Respondent assured PW3 that the passports were reliable because they would be registered with the Government of Sierra Leone. He also said he would need to use some of the money used to purchase them towards payments to other members of the Government of Sierra Leone. In addition, the Respondent made clear his intention to provide forged naturalisation certificates to support the validity of the passports. PW3 then agreed to buy the three diplomatic passports.

9. On 3 March 1999, when PW3 and Simon Stone met the Respondent at about 10.00 a.m. in the second hotel, PW3 produced photographs of three persons saying that they were his employees. PW3 then asked how the passports should be made up to avoid the risk of damaging them. The Respondent then set a photograph into one of the diplomatic passports, laminated it and sealed it with the embossing seal. We have seen this passport today and it was most professionally done. PW3 then showed the Respondent his briefcase which contained some United States currency and he asked Simon Stone to collect the balance of US$540,000 which was said to be in the hotel safe. Simon Stone then left the room ostensibly for the purpose of bringing back the money but he returned with other officers who arrested the Respondent. The video-recording supported this account of matters, and recorded other details given by the Respondent as to how the false passports should be filled out.

10. After his arrest, the Respondent was questioned. At first, he denied having had any dealings with PW3. He denied trying to sell passports and later explained that Mr Miller (PW3) was the business partner of Simon Stone. He said, for reasons which will become apparent, that he was trying to convince PW3 that Simon Stone had "done nothing wrong". In effect, he said he had been trying to give a demonstration of genuine passports. He denied having any knowledge of any money at the meeting in the second hotel. The Respondent then went on to say, as the Reasons for Verdict concisely show, that:

".... he was himself in Hong Kong at the invitation of his country's ambassador to testify in a matter before the Hong Kong courts concerning a Sierra Leone passport issued to Stone, which was alleged to have been obtained unlawfully. He was also to deal with the Hong Kong Immigration Department and various other persons, regarding passports which had been issued under his country's investment immigration programme, and to see whether these had been properly issued. He explained this programme which in effect allowed outsiders to become naturalised as citizens of Sierra Leone, and to hold passports from that country, in exchange for investment there. He mentioned a Mr Frank Yiu who had been appointed by his government to run this programme in Hong Kong."

Defence case

11. The judge rejected the Respondent's defence of acting with a reasonable excuse. The Respondent had made out in his evidence in the court below that he was recruiting an "honorary consul" on behalf of his Government and, in pursuance of this, that he was lawfully issuing a diplomatic passport. The judge had heard evidence from PW3 that during the earlier meeting on 26 February 1999, PW3 had told the Respondent:

".... you see the problem is this is that .... my friend Simon was stopped at immigration check point. He was arrested, searched .... and so on..... Now I can't afford that to happen.... Because, if my people, and I'm interested not so much to myself but some of my .... associates. If my people was stopped .... and searched it would be, at least, embarrassing .... And if they were stopped and searched in the wrong country, it would be potentially fatal. So, I need (know) that ... is not going to happen. Now, how can I be assured of that?

(Respondent): Yeah, I would not .... tell a lie in that, yeah. All I know is this, that's one the document I give you .... internationally recognized. The thing which I give you ... alright.

(PW3): So, you have a diplomatic passport?

(Respondent): I do.

(PW3): Yeah, O.K.

(Respondent): O.K. I'm the head of the department."

12. Part of the gravity of this case is revealed by the last answer because, of course, anyone with immigration difficulties arising from the use of these diplomatic passports would have been able to refer the matter not merely to someone in the Immigration Department connected to the Sierra Leone Government but to the person who was actually in charge, namely this Respondent.

13. The judge, in rejecting the defence case, found that the Respondent was using a set of false documents in return for a very large sum of money. Whatever legitimate business had brought the Respondent to Hong Kong, this was not part of it. It is also implicit from the Reasons for Verdict that the Respondent knew, when he committed the offence, that the person to whom he was selling the passports would be inserting false particulars of the passport holders' identities and that these would be used to facilitate international criminal activity. Two of the passports were to be sold in blank form and one of them had had the photograph inserted by the Respondent at the request of PW3. The passports were to be sold together with naturalisation certificates which the Respondent said, no doubt to add credence to the travel documents, would be backdated to 1995. Furthermore, he had provided an official seal of the Sierra Leonean Government as part of the illegal transaction. The Respondent had assured the purchaser that the passports would be registered with the Government of his country, and that some members of his Government would be bribed to ensure that the passports would be accepted as genuine.

Mitigation

14. The Respondent's mitigation in the court below rested heavily on his personal circumstances, in particular his lost status in his home country and his sense of solitude and his inability to converse with anyone except in English when so far away from Sierra Leone. Secondly, it was said that he was not in the best of health. The third matter raised in mitigation has been strongly relied upon by Mr John Dunn who now represents the Respondent. This related to an element of 'entrapment' which counsel who acted for the Respondent in the court below suggested was something which could properly be taken into account as a mitigating factor. On this basis, counsel who appeared before the District Court judge had sought a discount to the sentence which would normally have been passed as a reflection of the Respondent's reduced moral culpability.

Sentencing considerations

15. In passing sentence, the judge was well aware of a number of aggravating factors. First and foremost, the Respondent was a very senior official of a foreign government with authority to issue passports himself and with access to genuine passports and other government items such as certificates of naturalisation and official seals.

16. Secondly, the passports, certificates and seals were all genuine and the Respondent was able to put in place suitable arrangements to ensure that the documents would be recognised by the Sierra Leonean Government once they had been purchased. This was crucial to their international acceptance and was a key factor in making them high value items.

17. Thirdly, as the Respondent well knew, the value of diplomatic passports lay in the immunity from search which they provide to their holders which extends, of course, to the sealed diplomatic bag or bags they might carry with them. The knowledge of their value was evidenced by the very high price he was asking for these three documents.

18. Fourthly, and arising directly from the second and third aggravating features, the Respondent was aware that the person to whom he was trying to sell the diplomatic passports was apparently buying them because he was involved in international criminal activity. This activity may, for all the Respondent knew, have been trafficking in drugs or in arms or have been connected to terrorist activities.

19. With these factors in mind, taken together with the mitigation, the judge took a four-year starting point and reduced this to a sentence of three years' imprisonment.

The Application

20. Mr Ryan, on the Applicant's behalf, submitted that the sentencing judge had not paid sufficient regard to the gravity of the offence or, most significantly in the present context, the impact of the Respondent's offence on the international community. This conduct would not only have impacted on Hong Kong but on every country in which diplomatic passports might have been used to gain entry without a search of the holder. In this context, it is to be noted that the Respondent also had in his possession a number of ordinary passports but it was not these which he was selling to PW3. Mr Ryan submitted that the sentence should have reflected the danger posed to other nations by the Respondent's conduct as well as compliance with the principle of the comity of nations by the courts in Hong Kong. As to this principle, Jowitt's Dictionary of English Law (2nd ed.) defines the "comity of nations" as:

"... that body of rules which States observe towards one another from courtesy or mutual convenience, although they do not form part of international law. It is derived altogether from voluntary consent, and is inadmissible when it is contrary to the State's known policy or prejudicial to its interests. In the absence of any positive rule affirming or denying or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless repugnant to its policy or prejudicial to its interests."

21. Bokhary J (as he then was) in The Queen v Raquel M. Garcia (1990) 1 HKLR 599 at 601G said in a helpful passage regarding the approach taken by the courts to the comity of nations:

"There is a mutual responsibility shared by all nations in regard to the proper identification and legitimate control of persons moving across international boundaries. There are very good reasons - even in the best of times - why this is important. And nowadays - with the rapid movement of ordinary criminals and worse throughout the world - these things have become even more important. That is why these matters always have to be regarded seriously and certainly investigated thoroughly."

22. We respectfully endorse those remarks. In the present case, the Respondent was an active participant, said Mr Ryan, in an illegal passport racket using a position of considerable influence to sell diplomatic passports to those who could afford to pay a high price for them. His offence was obviously far more serious than the kind of offence committed by a person who is in possession of a false passport for his own use.

23. It was in these circumstances that Mr Ryan submitted that the sentence was manifestly inadequate. It was his contention that the judge, while admittedly having referred to the maximum sentence available for an offence of this kind, had nevertheless paid little regard to the legislative intent for an offence of this gravity. As Mr Ryan pointed out, the sentencing judge had relied to an extent on the judgment given by Power VP in Secretary for Justice v Tsui Kim-ming, Simon CAAR 4/1997 (unreported) for the purpose of assisting him in the determination of an appropriate starting point for sentence in the present case. In Tsui Kim-ming, the respondent had successfully taken immigrants to England on four occasions. He was caught as he tried to take a fifth person to the same destination by posing as the husband of a woman who was using his real wife's British passport. He pleaded guilty to aiding and abetting the use of an unlawfully obtained travel document and aiding and abetting the use of an identification card relating to another. The remaining four pairs of offences in the sequence were taken into consideration. In that case, the sentencing judge had adopted an overall starting point of two years' imprisonment which he reduced to a total of fifteen months having regard to the mitigation. The Court of Appeal took the view that a starting point of four and a half years would have been appropriate and, but for the fact that it was a review, would have imposed a sentence of three years' imprisonment taking into account that it was a plea of guilty. The court found in that case that the offences were premeditated and committed for financial gain, deceiving the authorities on four occasions.

24. In the present case, the sentencing judge took the view that the offence was "more serious" than the offences disclosed in the example of Tsui Kim-ming because of the facility being provided by the Respondent to drug and contraband smugglers "rather than simple illegal immigration". We agree with this sentiment but, despite this assessment, the judge then adopted a lower starting point (four years' imprisonment) than the Court of Appeal had stated was appropriate in Tsui Kim-ming.

25. The judge outlined the mitigating factors before eventually sentencing the Respondent to three years saying, amongst other things:

"I accept that the defendant has a clear record. He had an important position in his own country which he will no doubt now lose because of this offence. He is an African from Sierra Leone and only speaks the language of that country and English. Prison in Hong Kong, amongst an almost entirely Chinese and non-English-speaking prison population, can be expected to be hard on an African. I do not know whether there is any agreement between Hong Kong and Sierra Leone which may allow him to be transferred home by order of the Chief Executive under the provisions of the Transfer of Sentenced Persons Ordinance. I can take his foreignness into account. I can, I think, also take into account that he is not a well man, and was unable to continue with his trial for one day because of hypertension. In view of his own particular personal circumstances, I propose to allow a reduction of 1 year."

26. In effect, the Respondent had been given a discount of 25% to allow for those matters which had been raised in mitigation.

Respondent's submissions

27. Mr Dunn rightly submitted that nowhere in the Reasons for Sentence had the judge made any reference to the 'entrapment' element which he suggested formed the background to this case, despite the fact that it had been specifically referred to in mitigation. He argued, therefore, that we should act on the assumption that the judge had taken this element of the mitigation into account in arriving at a four-year starting point before the judge made a further reduction to take into account the Respondent's personal situation.

28. Mr Dunn reminded us that Lord Scarman, adopting what had been said in R v Birtles (1969) 2 All ER 1131n and (1969) 1 WLR at 1047, when delivering his opinion in R v Sang (1979) 2 All ER 1222 at 1243, had said:

"It would be wrong in principle to import into our law a defence of entrapment. Incitement is no defence in law for the person incited the crime, even though the inciter is himself guilty of crime and may be far the more culpable. It would confuse the law and create unjust distinctions if incitement by a policeman or an official exculpated him whom they incited to crime whereas incitement by others, perhaps exercising much greater influence, did not. There are other more direct, less anomalous, ways of controlling police and official activity than by introducing so dubious a defence into the law. The true relevance of official entrapment into the commission of crime is on the question of sentence when its mitigating value may be high: see R v Birtles."

29. Mr Dunn submitted that not infrequently the courts are to be seen giving a discount to an offender who has been entrapped. As one example, he cited HKSAR v Daswani Anil Shewakram CACC 253/1997 (unreported). In that case, the trial judge had ignored the mitigation relating to entrapment. It is, we are bound to say, far from clear from the judgment why the so-called entrapment should have attracted any reduction in sentence. The mere fact that it was mentioned in mitigation obviously does not give rise to an automatic requirement to give a discount unless the entrapment provides mitigation along well defined lines to which we shall shortly turn. Furthermore, in Daswani Anil Shewakram, this court appears to have overlooked the fact that the sentencing judge had taken an eight-year starting point before he reduced this by one-third to five years and four months to take into account the pleas of guilty. As Mr Dunn pointed out, the court in that case appeared to have thought that a 50% discount for entrapment was appropriate but, if so, it seems to us that the court went on to discount the sentence, which had already been discounted by a third, by a further 50%, leaving the applicant in that case with a sentence of two years and eight months to serve.

30. Unsatisfactory though the decision in Daswani Anil Shewakram clearly was, Mr Dunn's point remains a valid one. Where entrapment establishes a lower blameworthiness on the part of an offender, a lower sentence than would normally be imposed should be given.

Conclusion

31. One of the questions we have asked ourselves is whether in the present case the Respondent was somebody who should have benefitted on sentence as the result of the way in which he was caught in a trap. We have already made reference to the way the Respondent behaved when he first met PW3. It is apparent to us that no criticism attached to PW3's conduct. His duty was to carry out an investigation into a potentially serious passport racket. In carrying out that duty, what he had said to the Respondent was:

".... I've got a group of associates who involve themselves in .... shall we say .... a courier service. And .... basically, they run a private courier service and doing various commodities. And .... it's so useful on occasions for us to be able to go to .... government facilities .... not bother with ... the irregularities that you will get when you go on a normal visa .... Simon tells me that you might have available, ... diplomatic passports of your country .... My problem is that .... I know that Simon has got a passport from your country and I heard that Simon has had a great deal of difficulties at the moment."

32. We were reminded of the way in which Barker JA expressed the position, when dealing with entrapment, in R v Liu Chun-fai (1987) HKLR 1032 at 1035G-J where he said:

"So there is a fundamental distinction between police incitement which results in the commission of the offence or perhaps a more serious offence and undercover police investigation, which may be absolutely essential in certain types of crime if the police are to do their work properly.

The sale to the police officer in this case would not have taken place if the police officer had not been there. It would not have taken place if the man knew he was a police officer. But the real question is whether it would have taken place to somebody else if it had not taken place to this police officer .... We conclude therefore that there is no substance in the suggestion that the police conduct here constituted entrapment. Therefore their conduct was not a mitigating factor as far as the applicant was concerned."

33. The matter was also covered in a very brief passage in HKSAR v Kai Chi-chung & Anor. CACC 259/1997 Power VP said:

"What a sentencing court must ask itself is whether there was any real likelihood that the appellant was encouraged to commit an offence, which he would not otherwise have committed. In the present case we say without hesitation that there was no such likelihood. When the police officer posed as a customer hoping to purchase drugs he was setting a legitimate trap. There was, we are satisfied, no element of entrapment in the present case such as would attract any discount from the proper sentence."

34. We can put it, perhaps, even more shortly. A "legitimate trap" is not to be equated with entrapment.

35. The Respondent, who was 46 at the time of this offence, was in our view at no stage encouraged to commit a crime which he would not otherwise have committed. On the contrary, the Respondent named his price, ￡120,000 sterling for each passport, and showed PW3 the equipment he had with him to turn the passports into valid travel documents for whoever needed them. The inquiry made by PW3 revealed the Respondent to have been ready to find a willing buyer, whoever he may have been.

36. Bearing in mind the gravity of the offence, in our view none of the factors which the judge took into account in mitigation should significantly have affected the sentence he imposed. If entrapment was a factor he took into account, and it is unfortunate that the judge was silent on the topic, he should not have done so in the particular circumstances which pertained here. The Respondent had abused his high office while on a visit to Hong Kong on what was ostensibly a legitimate visit and the consequences of his actions were of his own doing and no doubt motivated by personal greed.

37. In our view, the sentence for this offence required a substantial deterrent element. We are equally in no doubt that the sentence of three years' imprisonment failed to provide a deterrent effect and was unduly lenient bearing in mind the maximum level of imprisonment which is provided for such offences taken together with the circumstances in which this offence was committed. These circumstances provide an insight into the considerable abuse of power by a corrupt and very senior official of a foreign government who occupied a position of great trust. It is plain that the Respondent paid scant regard to the potentially widespread damage which could have flowed from his actions both in terms of the criminality that he was promoting on the part of others once they took possession of the diplomatic passports and as regards the respect with which all nations treat the holders of diplomatic passports.

38. In our view, a proper starting point should have been not less than ten years' imprisonment. As the jurisdictional limit in the District Court is seven years, we shall impose that sentence by way of substitution upon the Respondent. He would normally have received a sentence of at least ten years and so he had already derived significant benefit from the fact that these proceedings were conducted in the District Court. For that reason, we cannot see that any further discount can be justified.

39. This application therefore succeeds. The sentence is varied from three years' imprisonment to one of seven years.