HKSAR v. Lo Wan Chiu

CACC000144/1997

IN THE COURT OF APPEAL OF THE HIGH COURT

1997,No. 144
(Criminal)

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Coram: The Hon. Power, V.-P., Mayo, J.A. and Wong, J. in Court

Date of hearing: 24 July 1997

Date of delivery of judgment: 24 July 1997

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J U D G M E N T

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Wong, J. (giving the judgment of the Court):

1. The Applicant pleaded guilty before Deputy Judge Wright in the District Court to a charge of conspiracy to offer an advantage to an immigration officer and a charge of offering an advantage to the same immigration officer. He was sentenced to two years imprisonment on each charge, to be served consecutively. He now seeks leave to appeal against the sentences.

2. The facts were that on 16th December 1994, YUNG Cheuk-hi, who was the 1st Defendant in the court below, entered Hong Kong International Airport and presented to the immigration officer with a forged Thai passport in a Thai name. He was searched and a number of identification documents such as passports, identity cards and driving licences were seized from him. The immigration officer in charge of this case was LAM Hing-cheung. Yung was released on bail to report to the immigration officer a week later but he failed to turn up. On 6th October 1995, Lam received a phone call from a man who claimed to act on behalf of Yung, requesting Lam to settle Yung'S case and offer to pay him $100,000.00. Lam refused and reported the incident to his superior who in turn reported the matter to the ICAC. On 9th January 1996, Lam contacted Yung direct by telephone. Afterwards, AU Kwong-yui, an ICAC officer posing as the agent of Lam had meetings with Yung and the Applicant in a coffee shop and a restaurant both in Hong Kong and in Shenzhen. On 26th February 1996, the Applicant telephoned Mr. Au who was out and the Applicant spoke to another ICAC officer, YAU Lee-kwong who had previously met both Yung and the Applicant in Shenzhen. On 29th February 1996, Mr. Au and Mr. Yau met the Applicant at the coffee shop of Grand Tower Hotel and the Applicant was given the documents seized from Yung when he entered Hong Kong on 16th December 1994. After receiving the documents, the Applicant gave $110,000.00 to Mr. Au saying that he had taken $10,000.00 as his tea money.

3. On 9th April 1996, the Applicant telephoned Mr. Yau asking for the supply of Registration of Persons records containing personal particulars of Hong Kong residents. The Applicant said that he would pay $10,000.00 for each copy of such record. This forms the subject matter of the 6th charge to which the Applicant also pleaded guilty together with the first charge of conspiracy.

4. The Applicant and Yung were arrested on 2nd May 1996.

5. Yung pleaded guilty to the conspiracy charge before another court and was sentenced to two years imprisonment.

6. Mr. Buchanan who appears before us for the Applicant argues that the overall sentence of four years for the two charges is too severe having regard to the totality of principle. He has no complaint of the sentence of two years itself imposed on each charge nor the starting point of three years. He also submits that YUNG Cheuk-hi was the mastermind and instigator of the whole scheme and his culpability was greater than that of the Applicant.

7. In his Reasons for Sentence, the Deputy Judge gave very careful consideration to the matters raised by counsel at the trial. Having heard Mr. Buchanan and having considered the authorities cited before us and having regard to the circumstances of this case, we take the view that the overall sentence of four years imposed on the Applicant is manifestly excessive. We consider that a sentence of three years would be appropriate. This can be achieved by the sentence on the second charge to be served partly concurrent and partly consecutive. We order one year of the sentence on the second charge to run concurrently with the sentence of two years imposed on the first charge. Treating the application for leave as the hearing of the appeal, we allow the appeal to the extent indicated.

Representation:

Mr. I. G. Cross, S.C. and Ms. Denis Chan (D.P.P.), for the Respondent.

Mr. Buchanan instructed by Messrs. Josip Ma & Co., for the Applicant.