THE QUEEN v. LI KAM FOR

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1450 OF 1989

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BETWEEN

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JUDGMENT

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1. The appellant was convicted after trial by Mr W. Eccleton on three charges of aiding and abetting counselling and procuring others to have in their possession unlawfully obtained travel documents namely Tongan passports, and on one charge of being in possession of an unlawfully obtained travel document, namely a Tongan passport.

2. The three persons named in the aiding and abetting charges pleaded guilty to being in possession of unlawfully obtained travel documents and were sentenced respectively to 9 months' imprisonment. The appellant was sentenced to 18 months' imprisonment on each charge, to be served concurrently. He now appeals against this sentnece.

3. The appellant at one point withdrew his appeal against conviction and sentence. He did this without the benefit of legal advice and I accept he signed the form in the belief that he was withdrawing only in respect of the appeal against conviction. The Crown opposed the application for leave to withdraw the Notice of Abondonment of appeal against sentence. I allowed the application, treating the notice as a nullity, being satisfied that the abondonment was not the result of a deliberate or informed decision but was based on mistake.

4. The facts of the case are that the appellant was approached by persons from his native village in Mainland China with a view to emigrating. The appellant in his cautioned statements, which were admitted into evidence after challenge, stated that he assisted them on behalf of Yeung Hoi Chuen, who operated an emigration business in Hong Kong. Yeung had adviced him that individual applications to Tonga, the country to which the Mainland Chinese were emigrating, were considrably more expensive than family applications. It was decided therefore that an application would be made on behalf of six persons as if they were a family group. This was done and the application was approved by the Tongan authorities. The application wrongly showed a common family name and some of the ages were also wrong. Four persons subsequently arrived in Hong Kong but as one had not paid the fees the appellant kept that passport. This is the subject of the fourth charge. The offences came to light when these persons were trying to exit from Hong Kong.

5. The Magistrate did accept that the four persons who came to Hong Kong were friends, or at least fellow villagers, of the appellant. He did not however accept that the appellant had, as he had claimed, provided the service out of a misplaced sense of loyalty. He was of the view that the appellant must have done so for some monetary reward. The Magistrate was also satisfied that while there was no evidence that the appellant was representing a group engaged in the business of forged or unlawfully obtained passports, this one transaction was a well organised scheme by which lawful channels were used unlawfully. He had regard to the commity of nations principle and was concerned that Tonga was getting four individuals instead of a family unit, although they were all from the same village. There was unfortunately no evidence before the Magistrate as to whether the Tongan authorities would have accepted the four as individuals rather than as a family unit. If it was simply an attempt to save money as the defence submit, then the defence ought to have put this in evidence before the Magistrate. It would certainly have been a strong mitigating feature.

6. In fixing the appropriate sentence the Magistrate had regard to the decision of Bewley J. in R. v. Bhagwant Singh Padda MCA 1447/1988 and stated that he considered the upper scale of sentences set out in that case to be applicable. Bewley J. while setting out four catagories of offences relating to false passports did not in fact set out any scale of sentences.

7. The judgment does however include a very helpful summary of some of the relevant authorities. It comes from these that a sentence of 18 months' imprisonment as appropriate for offences against s.42 of the Immigration Ordinance and I take it that this was the upper scale sentence the Magistrate was referring to. It also comes from the judgment that this is a guideline only and that each case must be dealt with on its own facts. The Magistrate very properly reflected this when he imposed sentences of 9 months' imprisonment on the persons who were using the Tongan passports.

8. The question to be asked here is was he right to then double that sentence in respect of the appellant, who was the middle-man, the one who gave advice and helped the processing of the applications of his friends. He was certainly right in the circumstances to reflect the more serious nature of the appellant's involvement by imposing a higher sentence than that given to the users of the passports. However, having regard to the particular circumstances of this case; that the appellant was a friend of the proposed emigrants, that this appeared to be a one-off transaction, that there was no evidence of an orgainsed criminal syndicate; and that the appellant aged 37 had a clear record, I consider sentences of 18 months' imprisonment to be manifestly excessive. I will allow the appeal to the extent of setting aside the terms of 18 months imprisonment and substituting 12 months' imprisonment on each charge to be served concurrently.