HKSAR v. LAM FAT

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1011 OF 1998

(On Appeal from ESC 3272 of 1998)

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J U D G M E N T

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1. The Appellant Lam Fat faced two charges. First charge: possession of an unlawfully obtained travel document, that he on 29th September 1998 in Hong Kong had in his possession an unlawfully obtained travel document, namely People Republic of China passport no. 142928781. Charge two: making a false representation to Immigration Assistant lawfully acting under or in execution of Part II of the Immigration Ordinance. Particulars of the offence read: Lam fat on the 29th day of September 1998 in Hong Kong that he made a representation knowing the same to be false or not believing the same to be true to the Immigration Assistant lawfully acting under or in execution of Part II of the Immigration Ordinance. In that he represented that his destination was Fuzhou.

2. The Appellant pleaded guilty on 2nd October before the learned magistrate, Mr. R.B. McNair. The brief facts of the case which were adopted as the basis of the prosecution's case and which were admitted disclose the following events, and I am reading from the brief facts insofar as they are relevant.

3. On 29th September 1998, the Defendant was intercepted by the Immigration Officers when he was boarding the flight no. CP8 heading for Vancouver for possessing a suspected forged People's Republic of China passport in the name of Choi Ren born on 20th August 1979. He was detained for further investigation.

4. Enquires revealed that he was actually known as Lam Fat born on 20th August 1981. For the sake of securing work in Vancouver, the Appellant agreed the offer to be arranged some travel documents at a cost of RMB40,000.00 and then on 14th September 1998, the Defendant entered Hong Kong on the strength of his own Chinese two-way permit and was permitted to remain as a visitor.

5. On 29th September 1998, the Defendant used his own permit to depart Hong Kong and falsely represented that he was going to Fuzhou. In fact, he intended to go to Canada.

6. After he proceeded to the transit lounge, he was given by the middleman the said People's Republic of China passport and a boarding pass to Vancouver. Upon receipt, he was aware that the particulars recorded therein did not relate to him except the photo. However, he still possessed it and intended to board the flight CP8 for Vancouver.

7. The learned magistrate having heard mitigation plea on his behalf then sentenced the Appellant to 15 months on the first charge, another 15 months on the second charge, the 12 months in the second charge was ordered to run concurrent with that of the first charge. Of the 3 months in the second charge it was ordered to run consecutive to the first charge, making a sum total of 18 months. In this regard, it has been pointed out to me that in his written reasons dated 17th October, the record that it was 12 months for the second charge is inaccurate.

8. Mr. Wilson Chan, counsel representing the Appellant today advanced two grounds of appeal. Ground 1, Mr. Chan argues the Appellant had not used the unlawfully obtained passport for the purpose of entering or leaving Hong Kong. And in ground 2, the total sentence of 18 months' imprisonment imposed on the Appellant was manifestly excessive.

9. The subject matter of the first charge is an unlawfully obtained People's Republic of China passport. Cases involving similar documents have been examined by the courts in Hong Kong on many occasions. In the case of Ganin, judgment of Barnes J. it was held as Section 42 of the Immigration Ordinance was not only concerned with punishing people for deceiving authority in Hong Kong but also had as its aim punishing offenders in order to protect the probity of travel documents issued by friendly governments. Part of the punishment for offences of this type was aimed at presentation of the forged document purported to be issued by friendly government. The principle of the Comity of Nations required that the Courts act so as to show displeasure in such circumstances.

10. No doubt offences involving possession of an unlawfully obtained travel document often attract an immediate custodial sentence. This is axiomatic, however, it is the length of the terms of imprisonment that I have to decide today. My attention has been drawn to a number of Hong Kong authorities in which the documents in question were not used and they were not intended to use in either entering or leaving Hong Kong. The cases that are under consideration are normally termed transit cases. The forerunner of which is the case of R. v. Garcia [1990] 1HKLR HP 599. There, Bokhary J. held that it had been perfectly correct to prosecute the Appellant in that case even though she was in Hong Kong as a transit passenger. There was a mutual responsibility shared by all nations in regard to the identification and control of persons moving across international boundaries. The salient feature in the case of Garcia was that the unlawfully obtained document had not been used and was not intended to be used in leaving Hong Kong.

11. In this case, from the summary of facts which had been admitted by the Appellant, quite clearly he entered Hong Kong on the strength of a two-way permit, and he left Hong Kong on the strength of the two-way permit. As a matter of fact, it was the very basis of the prosecution's case that he was given the document in question at the transit lounge. This fact, however, was not alluded to by the learned magistrate in his reasons for sentence. Perhaps it would be instructive to look at the reasons for sentence provided by the learned magistrate on 17th October.

"The brief facts are on file and I would not unnecessarily reiterate them herein. I took into consideration all that was submitted in mitigation. The Defendant is a young man of 17 years who lived with his family on a farm in China, he has very low income and sought a job in Canada. He has a clear record and pleaded guilty at the earliest opportunity."

12. I cannot say with any degree of certainty that the learned magistrate had considered the fact that the unlawfully obtained passport was not intended for use in Hong Kong.

13. The learned magistrate went on to say that he found a deterrent sentence was apposite. With the greatest respect to the learned magistrate, from the reasons for sentence given, one cannot see any justification why deterrent sentence was called for. In the case of Garcia that I referred to earlier on, Bokhary J. had this to say at p.602 of the judgment: "one must bear in mind that deterrent sentences have to be justified".

14. The learned magistrate did not spell out whether such an offence was prevalent in that area in question or whether such an offence committed under similar circumstances was frequent in Hong Kong for that matter. But he had clearly borne in mind that the effect of the sentence he was going to pass on the Appellant was going to be a deterrent one and that must explain why the overall sentence of 18 months was meted out.

15. Mr. Vincent Wong, counsel for the Government, in his usual customary fairness accepted the sentence of 18 months was on the high side. I had the advantage of going through the various cases that had been brought to my attention by Mr. Chan for the Appellant. It appears that the sentence of 6 months laid down in Garcia had been followed almost universally in subsequent magistracy appeals, for example, at R. v. Arshao Magistracy Appeal No. 397 of 1995, R. v. Ali Magistracy Appeal No. 1140 of 1996.

16. Mr. Vincent Wong pointed out that in this present case, the Appellant cannot be regarded as coming within the transit cases, that I agree. But the very basis upon which transit cases are distinguished from the other cases involving the use of unlawfully obtained transport was that whilst regard must be paid to international comity, the document in question was not used in relation to entry or exit from Hong Kong, that appears to be the basis of many judgments. So in that regard whilst I do not think the present Appellant is to be regarded as in transit, I do attach weight to the submission that the document was not intended to be used in exiting Hong Kong.

17. I now turn to the personal circumstances of the Appellant. I do not propose to repeat what the learned magistrate had considered in relation to his personal hardship at home. I do, however, think that at the age of 17 with a clear record in the absence of any aggravating factors, the overall sentence of 18 months was manifestly excessive.

18. I am also of the view that having looked at the line of cases starting from Garcia the overall sentence of 18 months is wrong in principle. The appeal therefore must be allowed on these two grounds.

19. In deciding the appropriate sentence, I come to a view that 7 months on the first charge and 6 months on the second charge. The sentences are to run concurrently.