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HCMA001051/1990
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MAGISTRACY APPEAL NO. 1051 OF 1990
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BETWEEN
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THE QUEEN |
Respondent |
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AND |
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WONG CHUNG-HON |
Appellant |
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Coram: Hon. Hooper J. in Court
Date of hearing: 9 November 1990
Date of delivery of judgment: 13 November 1990
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JUDGMENT
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1. On 2nd July 1990, the appellant was convicted on his own plea in Central Magistrates Court on three charges under section 42 of the Immigration Ordinance, Cap.115, Laws of Hong Kong. The A charge related to possession of unlawfully obtained travel documents, namely ten unlawfully obtained travel documents in the names of himself and the five other members of his family. The B charge related to the using of an unlawfully obtained travel document for the purposes of Part II of the Immigration Ordinance and related to the 10th June 1990 when he used his own passport to travel between Hong Kong and Macau. The C charge related to the use of the same passport by the appellant when he came back from Macau to Hong Kong.
2. The facts of the case which were admitted by the appellant before the Magistrate were as follows :-
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"1.
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The defendant is properly known as WONG Chung-hon born on 15th May 1934 in China. His wife is properly known as LEUNG Kit-sum born in 1942 in Hong Kong. He has 2 daughters and 2 sons born in Hong Kong namely, Siu Hing, Nancy born on 20th February 1963, Siu Wai, Winnie born on 6th March 1970, Sai Hong, Danny born on 12th September 1971 and Sai Kai, David born on 17th November 1973.
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2.
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Subsequent to a referral from the Bureau of Identity Card of Macao, on 8th May 1990 the defendant was located at Flat B, 5/F, 80-82 Prince Edward Road, Mongkok, Kowloon for enquiries. Upon search a Portuguese document Cedula Pessoal No. 596621 in the name of Winnie Wong was unearthed.
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3.
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In the same afternoon a search was also conducted on a safe deposit box No.11241 of the Wing Lung Bank at 636 Nathan Road, Bank Centre, Kowloon. The box was opened under the name of the defendant's nephew Wong Koon-mui and the defendant was entrusted to gain access to the deposit box. As a result of the search, 10 Portuguese passports, 5 Portugueses documents Cedula Pessoal No. 596620, 596624, 596612, 596623, 596622 and 2 Portuguese National Identity Cards No. 170447 and No. 170443, all in the name of the defendant and his family respectively were found inside the safe box. (Subject matter of charge A). Details of the 10 Portuguese passports were as follows : - |
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El -
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Potuguese Passport No. 48606/83 in the name of Victor WONG Chung-hon born on 15th May 1934 in DILI TIMOR issued on 26th August. 1983 in Lisboa.
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E2 -
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Portuguese Passport no. 48605/83 in the name of Maria LEUNG Kit-sum born on 17th June 1941 in DILI TIMOR issued on 26th August 1983 in Lisboa.
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E3 -
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Portuguese Passport No. 48600/83 in the name of Nancy WONG born on 20th February 1970 in DILI TIMOR issued on 26th August 1983 in Lisboa.
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E4 -
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Portuguese Passport No. 48604/83 in the name of Winnie WONG born on 6th March 1971 in DILI TIMOR issued on 26th August 1983 in Lisboa.
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E5 -
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Portuguess Passport No. 48602/83 in the name of Danny WONG born on 12th September 1972 in DILI TIMOR issued on 26th August 1983 in Lisboa.
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E6 -
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Portuguess Passport No. 48601/83 in the name of David WONG born on 17th November 1974 in DILI TIMOR issued on 26th August 1983 in Lisboa.
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E7 -
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Portuguese Passport No. 46062/88 bore the same personal particulars as El issued on 26th August 1988 in Lisboa.
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E8 -
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Portuguese Passport No. 46168/88 bore the same personal particulars as E2 issued on 26th August 1988 in Lisboa.
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E9 -
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Portuguese Passport No. 13713/88 bore the same personal particulars as E3 issued on 21st December 1988 in Macao.
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E10 -
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Portuguese Passport No. 13799/88 bore the same personal particulars as E4 issued on 26th December 1988 in Macao. |
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4.
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On 15th May 1990, the defendant surrendered 4 more Portuguese National Identity Cards No. 10198431, 10198425, 163986, 164102 to the Immigration Department.
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5.
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When interview under caution, the defendant disclosed that in mid 1983, he and his famiuly went to. Portugal for sightseeing. At there, he met an unknown man who offered to arrange Portuguese Passports for him and his family at a total cost of US$3,000. For the sake of travelling convenience, the defendant agreed to the offer. Later, the man brought them to a place where the man filled in some forms for them to sign and handed the forms, their photos together with some money to the staff there. They went there 3 times for the purpose of obtaining the Portugueses National identity cards, Cedula Pessoal documents (documents in lieu of birth registration) and Portuguese passports. it took about 20 days for them to obtain the whole set of documents. After obtaining the documents, the man also explained the particuarls recorded on these document to the defendant. the man also told the defendant to report the same particulars as recorded on the Portuguese passports when they used them to travel. Though the defendant was aware that his place of birth recorded on El did not relate to his own while the places and dates of birth recorded on E2 to E6 did not relate to his wife and children as well as the false particulars on the rest of documents, he still kept them in his custody.
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6.
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In October 1983, the defendant initiated the use of El and in August 1984, the defendant departed Hong Kong for Macao with his family on the strength of their Hong Kong Re-entry Permits and when they returned to Hong Kong they used their respective unlawfully obtained Portugueses passports i.e. El to E6 and successfully passed through the Immigration.
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7.
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When the said Portuguese passports El to E4 expired in 1988, the defendant, his wife and his 2 daughters each successfully obtianed a replacement which bore the same personal particulars as the former one i.e. E7 to E10. After obtaining the new passports, the defendant also kept them under his custody. Thereafter he had also made use of E.7 on 2 separate occasions in Hong Kong i.e. on 10th June 1989 when he presented it for immigration arrival examination (Subject matter of charge B) and on 14th June 1989 when he presented it for immigration departure examination (Subject matter of charge C).
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8.
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The defendant admitted the offences under caution and he was charged on 7th June 1990." |
3. Mr Stephen Lau who represented the appellant before the Magistrate urged the Magistrate to take a lenient view on the basis of the fact that he was 56 years of age, had been in Hong Kong for 15 years, that his offences were commited out of foolishness and for travel convenience. He also made reference to the fact that 1997 was coming. He stressed the appellant's co-operation with the police and the fact that in 1987 he had financial problems and his company had closed down and that he was heavily in debt. He stressed the fact that he had always been an upright citizen.
4. The Magistrate's record indicates that he took into account Court of Appeal guidelines as to immediate custody and he passed sentences of 6 months' imprisonment on all three charges to run concurrently.
5. On the 10th July 1990, the appellant was represented by Mr Jimmy Kwong applying for review but the Magistrate refused to vary the sentences he imposed.
6. In his reasons for sentence, the Magistrate states that he accepts the following mitigation :-
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"(a)
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The appellant was a 56 year old family man of good character who had never been in trouble since coming to Hong Kong in 1949 and he was unlikely to offend again.
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(b)
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He had no use for the passports save as an escape from Hong Kong should that become necessary after 1997.
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(c)
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His use of the passports to go to Macau was merely to 'test' it. He was entitled to make the journey on his identity card.
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(d)
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The passports disclosed the true names of the defendant and his family. He was not hiding who he was or who they were.
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(e)
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I doubted whether the defendant appreciated the seriousness of his offences and I believe that he only realised the gravity of his position when I sentenced him. |
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(f)
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He was entirely co-operative with the prosecution and entered pleas of guilty. |
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(g)
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He was a man who had enjoyed success in business but who had now fallen on hard times." |
The Magistrate went on in his reasons for sentence :-
"Case law demonstrates that immediate custodial sentences can be expected for offences of this nature. There will be exceptional cases but, with regret, I could not find this to be one. It was urged on me that the fact that the defendant was a Hong Kong citizen mitigated the offences and did so to the extent of justifying suspended sentences. The basis of the argument was that no prejudice accured to Hong Kong and that the only wrong done was to promote corruption in another country. The cases demonstrate that one of the important factors in sentencing such cases is a regard for, and a need to protect, the comity of nations. In my judgment this principle defeated the argument.
It was urged that the case of a Hong Kong citizen being so convicted was rare, and that the element of deterrence, the protection of the comity of nations and the public policy element in sentencing was accordingly diminished. Given the nature of the offences detention usually occurs whilst the defendant is travelling abroad and hence the courts normally deal with foreign nationals. More significantly the element of rarity has to be balanced against the potential mischief : the temptation to Hong Kong residents, (who may fear the future and have no entitlement to overseas residence) to purchase false travel documents is obvious. That temptation is not likely to diminish in the next few years. The sanction has to be such as to discourage those minded to act so. I judged that punishment short of immediate imprisonment would be no sanction.
From the mitigation and from what I saw of the defendant in court I was sure that he was a decent man who acted as he did out of a fear for his family in the future. I gave as much weight as I could to such matters and I passed the least sentence I believed proper. I had to remember that it was people like this defendant who were likely to behave in such a way and that an evenhandedness of approach was called for. I could not in all conscience make an exception of this defendant."
7. The perfected grounds of appeal against sentence are that :-
"The sentence is manifestly excessive in the circumstances in that :
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(a)
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the learned magistrate erred in finding that 'immediate custodial sentences can be expected for offences of this nature';
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(b)
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the learned magistrate erred in finding that a deterrent sentence is necessary in this case in that he speculated that 'the temptation to Hong Kong residents to purchase false travel dcoument is obvious. That temptation is not likely to diminish in the next few years.';
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(c)
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the learned magistrate failed to give sufficient consideration to the special mitigating factors in this case." |
8. Mr Kwong who represents the appellant on this appeal. has referred me to the case of The Queen v. Wang Ju-wen (1989)2 H.K.L.R. 26, which is the leading case on sentencing for offences under section 42(2)(c) of the Immigation Ordinance. He stresses that the Court of Appeal accepted that each case must be judged in the light of its own facts. He stresses that the appellant was not charged with possession of forged passports, and also points out that all the cases referred to foreign nationals and not Hong Kong residents. He says all the cases were involving foreign people using foreign passports. He urges this court to take the view that the facts in the present case are unique. At one stage, he even went so far as to suggest that a layman would not think there was anything wrong with what the appellant had done. However, he did accept later on that it was clear from the admitted facts that the appellant knew fully well what he had done.
9. In my view, the Magistrate cannot be criticised in any way in respect of the sentence which he imposed. He was not wrong in principle in imposing an immediate custodial sentence. In a recent case, Magistracy Appeal 409 of 1990 The Queen v. Weng En-xing and others, Mr Justice O'Connor on the 10th July, 1990 made reference to some of the previous decisions as follows :-
"I have been referred to a number of cases as to what are appropriate sentences. The seminal case is the Court of Appeal decision R.v. Yu Wing-wut. Crim. App. No. 346 of 1984 which pointed to a sentence of 18 months imprisonment being appropriate for what could be described as the usual run of the mill case. That case was; referred to with apparent approval by the Court of Appeal in R. v. Gafni Zvi [1989] 1 HKLR 167 though in that case the court, for reasons described in R. v. Wang Ju-wen [1989]2 HKLR 26 as due to its 'unusual facts and because a material fact which influenced the sentencing court had not been clearly explained,' reduced the sentence to 9 months imprisonment. Those remarks should be borne in mind by those who seek to rely on R. v. Gafni Zvi.
In R. v. Wang Ju-wen [1989] 2 HKLR 26, the Court of Appeal again indicated approval for R. v. Yu wing-wut, that for the normal case a sentence of 18 months imprisonment is appropriate. Of course the facts of each case and each defendant have to be given distinct and separate consideration when arriving at an individual sentence. However these cases are of a kind in which the facts are often more or less stereotyped, without any valid grounds for distinguishing for purposes of sentencing. In such circumstances significantly differing sentences have an appearance of arbitrariness. Similar cases should be dealt with in a similar manner.
It has been submitted to me that the case of these appellants differs from the usual case in that these appellants had not used the forged passports in Hong Kong, that they had not used them to transit or try to transit Hong Kong. That is correct. However that is more than offset by the fact that they came to Hong Kong for the purpose of procuring false passports, entered Hong Kong as transit passengers, which they were not as they did not then have onward tickets, and in Hong Kong they procured the forged passports. They used Hong Kong as a source and collecting point for forged Passports.
Furthermore I do not accept it as a mitigating factor that the offences were aimed at Holland rather than at Hong Kong."
He went on to dismiss appeals against sentences of 18 months imprisonment.
10. The legislature makes no distinction between sentences imposed for possession of forged passports and possession of unlawfully obtained passports. Clearly the mischief is that a person in possession of such a passport, whether it is forged, or whether it was unlawfully obtained, is in possession of a document or is using a document which entitles him to travel freely between one country and another which, if the true facts were known, he would not be permitted to do.
11. It would appear to me that the magistrate has allowed his sympathy for the appellant and the appellant's family to reduce the sentence quite substantially from what might be considered the normal sentence for this type of offence.
12. I cannot say that the sentence is manifestly excessive. Neither can I say that the magistrate erred in principle in deciding to impose an immediate custodial sentence.
13. In the circumstances, the appeals against sentences are dismissed and the sentences confirmed.
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(N.B. Hooper)
Judge of the High Court
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Representation:
Mr Jimmy Kwong (Chui & Lau) for Appeallant
Mr A. Sham, Sr. Crown Counsel, for Crown
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