HKSAR v. Ng Lai Kin

HCMA001002/1998

HCMA1002/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1002 OF 1998

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Coram : Stock, J. in Court

Date of hearing : 8 December 1998

Date of judgment : 8 December 1998

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J U D G M E N T

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1. This is an appeal against sentence.

2. The appellant pleaded guilty to possession of an unlawful obtained travel document, namely, a United States passport.

3. On 29th January 1998, he was intercepted in the transit lounge at the airport whilst waiting to check in for a flight to Los Angeles. His passport gave a false name and a false place of birth. The passport bore his photograph and he said that he has an aunt in the United States who paid for the procuration of this passport.

4. The appellant is aged 22. He says that he has worked in the Mainland in an hotel and earned but a small wage and was hoping to go to the United States to work in his aunt's restaurant.

5. The courts have some time past put forward as a guideline a sentence on plea of 18 months' imprisonment for the use of a forged passport (see R. v. Wang Ju-wen, [1989] 2 HKLR 26 and R. v. Yu Wing-wut, Crim. App. No.346/84 and also R. v. Wang Ho-hung, Crim. App. No.342/88). This is not a strait-jacket and each case must be viewed on its own facts. It would appear that this is the guideline which was used by the magistrate in this particular case.

6. My attention has, for the purposes of this appeal, been drawn to a whole series of individual cases in which lesser sentences have been given for somebody in transit and it seems generally accepted now, both at this level and also by magistrates, that that is to be viewed as a factor which should warrant a departure from the guideline of 18 months.

7. Prosecuting counsel tells me that the range of imprisonment is normally one of six to nine months. Ms Shui, who addresses me on behalf of the appellant, tells me, and of course I accept, that most of these cases go before the San Po Kong Magistracy (which this case did not) and at San Po Kong the range is normally six to nine months' imprisonment.

8. I have to say that I have some difficulty with the rationale for such a wide difference between the two, in other words between the sentences imposed for transit cases and non-transit cases. I say that because the major element in sentencing for all cases of this kind to which the courts should have regard is the element of comity, and the need to co-operate for our own benefit and for the benefit of others to prevent or deter travel on false passports.

9. Be that as it may, if the norm has developed to a range of six to nine months, then this appellant will, it seems to me, have a justifiable sense of grievance if his sentence is in effect doubled; and the issue of transit is, I note, one not addressed expressly by the magistrate in his Reasons for Sentence.

10. Accordingly this appeal against sentence is allowed and I will substitute for the term of 18 months' imprisonment to a term of nine months' imprisonment. This decision is not to be taken to set a norm and in particular, if there is evidence of increased abuse of passports obtained on the Mainland, then it seems to me that sentences for those in transit will have to be increased.

Representation:

Mr Wesley Wong, SADPP (Ag), of Department of Justice, for HKSAR

Ms Kelly Shui assigned by D.L.A., for the Appellant