The Queen v. Wang Ju Wen

CACC000272/1988

IN THE COURT OF APPEAL

BETWEEN

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Coram: Cons, V.-P., Silke, V.-P. & Fuad, V.-P.

Date of Hearing: 2nd September 1988

Date of Judgment: 8th September 1988

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J U D G M E N T

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Fuad, V. P. (giving judgment of the Court):

1. The Applicant, Wang Ju Wen, seeks leave to appeal against sentences imposed upon him on 31st May 1988 by Judge Longley in the District Court for offences under the Immigration Ordinance, (Cap.115).

2. On 26th May, the fourth day of his trial for six offences against the Ordinance, the Applicant pleaded guilty to two charges of possessing false or unlawfully obtained travel documents contrary to s.42(2)(c) of the Ordinance (Charges 1 and 2). He also pleaded guilty to three charges of using such travel documents contrary to s.42(2)(b) of the Ordinance (Charges 4, 5 and 6). Charge 3 which he had faced was not proceeded with.

3. He was sentenced as follows:

Charge 1: 18 months' imprisonment and a fine of $10,000.

Charge 2: 18 months' imprisonment and a fine of $10,000.

Charge 4: 2 months' imprisonment.

Charge 5: 2 months' imprisonment.

Charge 6: 2 months' imprisonment.

4. The judge ordered the sentences on Charges 1 and 2 to run concurrently with each other. He directed that the sentences on Charges 4, 5 and 6 run concurrent to each other and to commence on the expiration of the concurrent sentences on Charges 1 and 2. The Applicant was thus given substantive sentences of imprisonment totalling 24 months.

5. Default sentences were imposed in respect of the fines but we are told that these were paid within the time allowed.

6. The facts were as follows. During an investigation into offences unconnected with these charges, on 8th January this year, a police party armed with a search warrant went to the Applicant's business premises at the Lladro Centre in Kwun Tong, arrested him and took him to the Commercial -Crime Bureau for further enquires.

7. Later that day police officers went back to the Applicant's office with him and they saw him putting three passports into a brief case, having taken them from the drawer in which they had been kept. The police were suspicious and asked him to hand them over, which he did.

8. The Applicant's pleas of guilty related to two passports. One was a Malaysian passport in the name of Wong Chong Fuat whom, passport evidenced, had born at Selangor on 4th May 1958, and was resident in Malaysia. It bore the Applicant's photograph and signature (Charge 1). It was common ground that he had used this passport on 16 occasions during 1987 to enter or leave Hong Kong and specifically:

(a) to land at Kai Tak on 17th February 1987 (Charge 4); and

(b)    to enter Hong Kong through the Lo Wu check-point on 29th October 1987 (Charge 5).

9. On each of these two occasions he had filled in an arrival form signing in the name of Wong Chong Fuat, giving a Malaysian home address and stating that his Hong Kong address would be the Holiday Inn on the first occasion, and the Hilton on the second.

10. The passport which was the subject of Charge 2 was found to he in the name of Louice Ong, ostensibly born at Fookien on 7th May 1959. It, too, bore the Applicants photograph and signature. It was agreed that, he had used this passport to land at Kai Tak on 27th December 1987 (Charge 6).The arrival form which he completed was signed in the name of Louice Ong and gave a Manila home address. According to the information given on the form, he would he staying at the Hilton.

11. The Applicant was in fact born in Taiwan on 7th May 1959. He came to Hong Kong in March 1985 and is the holder of a Hong Kong identity card in his proper name.

12. The judge accepted the evidence he had heard which was not disputed that the Malaysian passport had been a genuine one, issued to a Malaysian citizen with the name Wong Chong Fuat. As to the Philippines passport the judge noted that, although the Applicant had claimed through the solicitor then appearing for him that he sometimes used the name Louice Ong he had made no claim to the use of the aliases "Louice" or "Ong" in his application for the Hong Kong identity card or in the company registration documents relating to the two Hong Kong companies of which he was a director.

13. Later in his Reasons for Sentence, the judge recorded what he had been told on behalf of the Applicant that his sole purpose in obtaining and us the two passports was in connection with business travel; that Singapore and Korea did not accept Taiwanese passports; that travel Thailand, Malaysia and Philippines on a Taiwanese passport involved a wait of not less than two or three months: each time the necessary visa was applicant for; that travel to China by a Taiwanese citizen needed the express permission of his government and that the reason why the Applicant had obtained a Malaysian passport in addition to the Philippines one was because Malaysian passport holders were authorities, granted three months' visas by the Hong Kong authorities, whereas those holding passport issued by the Philippines government were only granted visas for one week it a time.

14. The judge then referred to the authorities cited to him and said that he could not accept that merely because a defendant was a Taiwanese businessman he should be placed in a special category when it came to sentence. While he accepted that the holder of a Taiwanese passport might find himself, facing certain difficulties similar problems were also encountered by the nationals of a number of other countries. The defendant had obtained two passports to which he was not entitled . He had done so not to overcome difficulties anticipated on one occasion but to travel many occasions to different countries. The Malaysian passport had been obtained so that he could get an automatic three months from the Hong Kong authorities whenever he arrived here.

15. The judge went on to say that he had taken into account the defendant's, plea of guilty (albeit at a late stage) and the fact that he was of previous good character. However, he pointed out that the legislature had made it clear by the statutory maxima of 14 years imprisonment for these offences that it regarded them very seriously. In his view, what made these offences particularly serious to society was that they often (as happened in this case) deprived countries of knowing the true identity and nationality of people entering their territory. He observed that at a time when societies were threatened by international crime, including terrorism, it was particularly important that states were not deceived about these matters. While he would accept that the defendant might have obtained the passports in pursuit of his business interests (and he had passed sentence on that basis any breach of the provisions of s.42 of the Immigration Ordinance had to be viewed seriously.

16. Mr. Corrigan, who appeared for the Applicant, before this Court, told us that when he had first came to Hong Kong, the Applicant had worked for someone else. About two years later he had set up his own import and export business in Hong Kong and due to his hard work the annual turnover of his business had reaches about $50 million.  As a result of his incarceration, and even while he was on remand in custody for five months before his trial, his business had collapsed; the entire business was really a one-man effort. His employees had to be dismissed.

17. We were told that the Applicant had committed himself to Hong Kong and had bought a flat here a year or so after his arrival. Mr. Corrigan explained and stressed the difficulties faced by Taiwanese businessmen who- wanted to do business in other parts of the region.

18. Mr. Corrigan acknowledged that an immediate custodial sentence was to be expected but submitted that the Circumstances justified a degree of leniency which the Applicant had not been afforded. He recognised that deterrence was legitimately a factor to be considered in the sentencing exercise but suggested that people like the Applicant would be deterred by a sentence of appreciably less severity. On the facts of this case, what could only be regarded as a punitive or retributive sentence was not called for.

19. We were told what sentences were imposed for various offences relating to the possession or use of false or unlawfully obtained travel documents in the Western Magistracy between January 1987 and August 1988. Certainly these sentences vary greatly in their severity but the lists with which we were provide contain no facts about the offences nor do they explain the circumstances in which they were committed, and so they are of little value to us.

20. It must he said, however, that they do indicate that offences under the various of s.42 of the Ordinance are prevalent. In the context of the statistics we were given, we would echo the observation made by Silke V.-P. delivering the judgment of this Court in R. v. Gafni Zvi, Cr.App. 229 of 1988 (19th August 1988, unreported) that it appears that the earlier decision of this Court in R. v. Yu Wing Wut, Cr.App 346 of 1984 (17th August 1984, unreported) was not drawn to the attention of the Magistrates concerned, for it seems unlikely that the very wide diversity of the sentences they imposed were due to solely to the facts of each case.

21. In Yu Wing Wut, where a man pleaded guilty to possessing one forged travel passport with which he had tried to leave Hong Kong for the Philippines, this Court said: "Appropriate sentences in the circumstances of this case would In our view be eighteen months ......". There was nothing in Gafni Zvi that derogated from this observation, although on the unusual facts of that case and because a material fact which influenced the sentencing court had not been clearly explained, two concurrent sentences of 2 years' Imprisonment were reduced to concurrent sentences of 9 months imprisonment. The Court in Gafni Zvi was at pains to emphasise that each case must be judged in the light of its own facts.

22. The case before us is a serious one of its kind - the Applicant was found with two false passports and had used them on many occasions when arriving in Hong Kong He was given visas for longer stays that his true status justified. We are firmly of the opinion that the mere fact that a defendant is a businessman who would not be able to do business so conveniently abroad (by reason of what Mr. Corrigan called "bureaucratic delays") unless he used a false passport cannot be regarded as a mitigating factor. Of course, it might he an aggravating factor if it could be established that the passport was used to further a criminal enterprise.

23. We respectfully endorse all that the learned judge had to say in his Reasons for Sentence. He was, we think, right to stress the importance of bearing in mind our responsibility to other countries in relation to their travel documents and the use to which they are put. This responsibility was recognised in Yu Wing Wut.

24. We have carefully considered all that has been urged upon us on behalf of the Applicant by Mr. Corrigan in his able submissions but are not persuaded that the sentences imposed were wrong in principle or manifestly excessive. In our judgment the total criminality revealed by the facts admitted by the Applicant fully justified an overall sentence of 24 months' imprisonment, together with the fines, however the sentences on the five charges were adjusted.

25. The application is refused.

Representation:

Mr A. J. Corrigan, Q.C. and Mr. Keith Yeung (Haldane, Midgley & Booth) for the Applicant.

Mr G.J. Lugar-Mawson (Crown Prosecutor) for the Crown.