The Queen v. Yu Cheung Kwong and Another

CACC000216/1985

BETWEEN

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Coram: Cons, Silke, JJ.A. & Mantell, J.

Date of hearing: 29 August 1985

Date of judgment: 29 August 1985

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JUDGMENT

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Silke, J. A.:

1. The applicant, Yu Cheung Kwong, was convicted upon his own plea of five offences variously relating to the using of a false passports; making a false representation to an Immigration officer; possession of unlawfully obtained travel documents; possession of implements for forgery; and possession of forged documents. There was charged with him, on separate but related counts, one Carlos Chiou Huang. The sentences passed on each of them was a totality of 3½years.

2. The background very briefly was that the applicant required a passport, a false one, and he arranged that through a Mr. Liu. Mr. Liu in turn introduced him to Carlos Chiou Huang, Carlos Chiou is a Bolivian national. Later, the two met in Tai Pei and the applicant invited Carlos Chiou to come and stay with him in his premises at Chatham Road in Kowloon. He was aware Carlos Chiou was involved in a false passport racket.

3. On the 30th January, the applicant returned to Hong Kong, having departed on the 15th January, and he was detained by Immigration at Kai Tak. He was found to have a false travel document. He admitted that in fact he had left Hong Kong on another false travel document which he had destroyed before his return. This led to the second count for he had made a false representation as to his personality to the Immigration upon that departure. With him, both on the 15th January and the 30th January was another defendant, D3, with whom we are not now concerned.

4. After investigations had been carried out and after the applicant had admitted his involvement in carrying the false passport on the day he arrived back in Hong Kong and his involvement with Carlos Chiou, the police went to the Chatham Road address and there they found a briefcase which was said to belong to Carlos Chiou. That contained a multiplicity of made-up false passports, blank passports, forged Bolivian and Peruvian dies for passport purposes and a Hong Kong Immigration chop, also used for passport purposes

5. In his Reasons for Sentence, the trial judge made two comments, both of which are challenged by Mr. Wong who appears for the applicant in this Court. He first said:

"Both accused were involved in an organisation engaged in the creation of forged Bolivian passports. Each, at the times charged, had possession not only of both part and wholly produced false passports but, in addition, dies of apparent Peruvian and Bolivian Government immigration chops as well as a Hong Kong Immigration arrival chop."

He referred to their having played a part in an organisation currently and actively engaged in the supply of false documents to persons prepared to pay for them and he went on, a point which was particularly stressed by Mr. Wong;

"A1 was actually, caught when assisting A3 through Immigration using one such false passport."

He further said:

"I could see little to distinguish between A1 and A2 on overall culpability"

That last comment is really the gravamen of this appeal. Mr. Wong suggests to us that there was a difference and that that difference should have been given recognition by the trial judge. He has referred us to the sentences passed in The Queen v. Mazi Run Nacoka⁽¹⁾ which related to forged banknotes, possession of forged travel documents and possession of a forged seal. In that case, another division of this Court reduced an overall sentence of six years to one of four. There were, however, very strong mitigating factors in Nacoka⁽¹⁾ which are not apparent here. It is an unusual case and we do not think it much, if any, assistance as a guideline.

6. We accept, however, here that there was some difference between the applicant and Carlos Chiou which was not fully reflected in the sentences passed on each of them in the trial court. Carlos Chiou was clearly more heavily involved than was the applicant; though the applicant was certainly involved in a capacity rather greater than that of a mere knowing custodian of the false passports and the implements by which they could be made.

7. To reflect that - and it is a difference not of such extent as to cause us real concern on quantum, which overall was low for the offences charged, but the sentence was wrong in principle - we reduce the overall sentence to one of three years imprisonment. The sentences of three and one half years imposed on the third and the eighth counts would, therefore, be quashed and there is substituted therefor a sentence of three years imprisonment on those counts.

(1)    Criminal Appeal No. 80 of 1985

Representation:

F. Wong, Esq. (R. J. Oliver) for Applicants.

G. Jackson, Esq. for Crown/Respondent.