The Queen v. Marie Edward Cyril Durup
Read the full judgment text of CACC 194/1986 on BabelCite. This Court of Appeal judgment was delivered on 13 June 1986 before Yang JA, Power J, Penlington J.
Criminal law – sentencing – immigration offences – false representations to Immigration Officer – forgery of supporting letters – plea of guilty – first offender – Whether sentence should be suspended – Whether adequate weight given to mitigating factors – Applicant ran an employment agency and assisted 7 Filipina women to remain in Hong Kong by making false representations in employment contract documents and forging 3 letters of support – Whether a suspended sentence was appropriate given the gravity of immigration offences – Whether the trial judge overestimated the basic appropriate period or failed to give sufficient weight to mitigating factors including guilty plea, first offender status, genuine remorse, and a glowing probation report – Court of Appeal's approach to the basic appropriate period and discounts – Offences are grave and require immediate custodial sentence – suspended sentences not appropriate – R. v. Siu distinguished – application allowed – sentence of 2 years varied to 1 year imprisonment – basic period assessed at 3 years before mitigation – strong mitigating factors and guilty plea resulted in reduction to 1 year.
Legal issues: Appropriate sentence for immigration document fraud and forgery
Outcome: Application allowed; sentence varied from 2 years to 1 year imprisonment.
Cited by 6 cases
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CACC000194/1986
_______ BETWEEN
_______ Coram: Hon. Yang, J.A., Hon. Power, Hon. Penlington, JJ. in Court Date of Hearing: 13 June 1986 Date of Delivery of Judgment: 13 June 1986 __________ JUDGMENT __________ Power, J.: 1. The applicant pleaded guilty to 27 charges. 24 of these charges were identical except as to names and dates. In each of these it was charged that the applicant had caused to be made, in a document furnished to an Immigration Officer, a representation which he knew to be false, namely that (name of the person) was to become employed as a domestic helper pursuant to a valid employment contract. The applicant also pleaded guilty to 3 charges of forgery which concerned letters of support required to be furnished so that the applications would be approved. 2. The offences took place between the 21st of May 1984 and the 2nd of July 1985. The intention of the applicant and of the persons being helped by him was that they should be allowed to remain in Hong Kong when, had they disclosed their true circumstances, they would have been required to leave. 3. It is pointed out by Mr. Plowman, who appears for the applicant, that this was the first charge of this kind to be preferred and that no tariff had been established at that time. He also pointed out and it is indeed pertinent, that although there were 27 charges, they related only to 7 Filipina women. The charges related to 7 continuing transactions and the forged letters of support were required with regard to three of those transactions. Mr. Plowman points out that this is not a case where the women were illegally brought into the Colony by the applicant. What he did was to arrange for them to continue to stay in the Colony. It must, however, be borne in mind, as Mr. Egan for the Crown has told us, that without the assistance of the applicant, these women would have been discovered by the authorities and required to leave. 4. Mr. Plowman places particular emphasises on the personal circumstances of the applicant. He says that the facts, as revealed to us, show that he did not deliberately set up an illegal enterprise but, for reasons that are not altogether clear, succumbed to temptation while running what was, in effect, an employment agency. Mr. Plowman urges us to accept that this was not an immigration service in the strict sense of those words and that the judge was in error in so describing it. It seems to us, however, that the judge was fully aware that this was so as he placed those words, when used them, in inverted commas. The profit made was small or only the initial transaction was charged for. The follow-up letters were provided free. Mr. Plowman places particular emphasises on the glowing probation report that was furnished to this applicant. He stresses that the applicant has lost his employment, his fiance aid his reputation. He stresses also that he pleaded guilty, that he is a first offender and that he has shown a genuine remorse. Mr. Plowman suggested that the trial judge must have had a sentence of 4 years as the basic appropriate period before allowance for the mitigating ciroumstances which I have just outlined. 5. However, to consider that this may well have been so, we cannot but bear in mind that the defendant must have had full knowledge of what he was dong when he committed the offences. Any person residing in Hong Kong knows full well the seriousness of remaining illegally in the Colony. No one could he unaware that such offences are serious ones. The continuing and grave difficulties posed to the authorities by the entry and remaining of illegal immigrants do not need to be outlined by us. They are known by all who have any knowledge of conditions in Hong Kong. The courts must take a serious view of such offences. It is suggested that, whatever sentence was imposed, it should, in the circumstances of this case, have been suspended. We are not persuaded that we should give any weight to R. v. Siu, to which reference was made by Mr. Plowman, in which suspended sentences were imposed for offences similar to the present ones. We are satisfied that the proper period of imprisonment had there been a plea of not guilty and had there been a probation report less favourable to the accused, would have been 3 years. In our view, that sentence should not have been suspended. These offences are of such gravity as to require the imposition of an immediate custodial sentence. 6. We are satisfied that, having arrived at the basic appropriate period, the judge should then have given weight to the strong mitigating factors. Having considered those factors with care and having listened to the very persuasive address by Mr. Plowman, we are satisfied that the judge either overestimated the basic appropriate period of imprisonment or failed to give sufficient weight to the strong mitigating factors. These factors, when combined with the plea of guilty, should have resulted in the imposition of sentence of imprisonment for 1 year. It is that sentence which we now impose by allowing the application and by varying the sentence of 2 years to one of 1 year. Representation: Mr. G. Plowman (D.L.A.) for the Applicant Mr. Egan (Crown Prosecutor) for the Respondent |
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