The Queen v. Wilaiwan Khunkeaw

HCMA001221/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL

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BETWEEN

BETWEEN

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Coram: Hon. Mr. Justice Barnes in Court

Date of Hearing: 29th November 1988

Date of Delivery of Judgment: 29th November 1988

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J U D G M E N T

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1. Each appellant pleaded, guilty to two charges, one of using a forged travel document, an offence contrary to Section 42(2b) of the Immigration Ordinance and the other of making a false representation to an Immigration officer, an offence contrary to Section 42(la) of that Ordinance.

2. Both appeals have been heard together because the only variation in the circumstances relates to the personal particulars of the applicants and that variation is for all practical purposes limited to their names and their ages.

3. The facts put before the learned magistrate were that on the 6th of October 1988 each of them at Kai Tak Airport presented Portuguese passports with false particulars in that, although the photograph was of the appellant in each case, the details in the passports did not refer to them at all. Each came to be questioned about the matter when it was suspected that the passport of each was a forgery. Under caution each admitted the offence and each told the Interrogating Officer what she claimed to be the circumstances which led to the commission of the offence. In each case briefly those circumstances were that she had been recruited by a Mr. Chan in Thailand to go to work in Japan. After having left Bangkok by aircraft, each had her genuine Thai passport taken from her in exchange for the forged Portuguese passport the subject of the charge. Each claimed that the aircraft landed in Manila where they planned to transship to another aircraft for the second leg of the journey to Japan but the Philippines authorities refused entry and as a result they boarded an aircraft and flew to Hong Kong.

4. Neither has any previous conviction. One is aged 20 and the other 21. The learned magistrate sentenced each of them to imprisonment for 9 months on the charge of using a forged travel document and to 3 months imprisonment on the charge of making a false representation. In each case he ordered that the sentences be served concurrently.

5. Mrs. Panesar represents both on the hearing of this appeal and has submitted identical grounds of appeal in respect of each. The grounds of appeal are well set out and in each case amount to some 8 complaints about the excessive, severity of the sentence. It is contended that the magistrate has failed to consider properly the special circumstances of this case as revealed in the caution statement made by each appellant. The learned magistrate in his statement of findings does not refer to these matters, namely, their, youthfulness, the allegation that they were under of the control of an older man; that they themselves were not directly responsible for the offences in that the arrangements to secure the forged passports were made by Mr. Chan; that being in posession of genuine Thai passports they could have entered Hong Kong legitimately; that the appellants had not at the time of the commission of the offences paid anything for the forged Portuguese passports; that they did not come into possession of the passports until they were already en route to Hong Kong and that the original aim in using the forged documents was to gain entry to Japan and not Hong Kong.

6. The learned magistrate has not made specific reference to these matters but he did say in his reasons for sentence that he too), into account the factors urged by each appellant^.

7. In the course of the hearing of the appeals Mrs. Panesar has referred me to a number of authorities the most important of which is R. v. Wang Gju Wen (C. A. No 272 of 1988). That was a decision of the Court of Appeal in which it was held, inter alia, that, following an earlier but overlooked decision in R. v. Yu Wing Wut (C.A. No. 346 of 1984), the use of a forged passport should attract a sentence of imprisonment for 18 months.

8. Mrs. Panesar points out that it is a guideline decision which was not to be followed if the special circumstances of the case indicated that that sentence would not be appropriate. She also referred me to R. v. Chan Ying (C.A. No. 47 of 1987) where in the very special circumstances of that case the Court of Appeal reduced a sentence of 12 months to one of imprisonment for 6 months where the defendant, a female used a false travel document. In that case the travel document was a Bangladesh passport but the court in arriving at its decision assumed for the purposes of that case that the photograph and the particulars in the passport were true in relation to that appellant. The court however did say that it was of the view that a sentence of imprisonment for 12 months in such a case as that was by, no means excessive.

9. In Chang Chien Yaun v. R. (M.A.  No. 68 of 1988) de Basto J. dealt with a case in which the appellant had been convicted of using an unlawfully obtained Philippine passport and of making a false representation to an Immigration officer. The appellant was sentenced to 9 months imprisonment on the 1st charge and 3 months on the 2nd. On appeal de Basto J. quashed those sentences and substituted a sentence of imprisonment for 6 months on the 1st charge and 2 months on the 2nd to run concurrently. But he also ordered that both sentences were to be suspended for a period of 2 years. In addition he imposed a fine of $10,000 in respect of the 1st charge. The facts in that case were however rather unusual in that the appellant was born and domiciled at the time in Taiwan. He came to Hong Kong on business and to visit his wife's relations in China. Some two months before coming here he had applied to the Hong Kong Government for entry permits to enter Hong Kong. But on the day he entered those permits had not been issued. He did not mention to the magistrate, but he put affidavit evidence before de Basto J., showing that entry permits were in fact issued to him on the 14th of January 1988, the day after he arrived in Hong Kong Thus, although he had quite clearly committed an offence in that he entered Hong Kong before the permits were issued the court was entitled to take the view that the offences involved minimal criminality in that although his entry was unlawful his presence here became lawful the following day. If he had travelled a day later he would have entered Hong Kong without committing any offence against the Immigration ordinance.

10. Mrs. Panesar urges that in this case since the mischief was aimed at Japan and not Hong Kong, the case of each of the 2 appellants has its special features warranting a considerable departure from the norm and certainly a reduction of the sentence of imprisonment from 9 months.

11. Although the appellants claimed that they were on their way to Hong Kong and that their entry into Hong Kong was unintentional in the sense that they did not set out from Bangkok for that purpose nevertheless the fact is that they did seek to enter Hong Kong; they did deliberately present to the Immigration Officer forged passports and each deliberately made a false representation to the Immigration Officer. The Bangladesh case was different in that the appellant in that case did not make a false representation.

12. Mrs. Panesar submits that since the original intention was not to deceive Hong Kong Authorities that special feature should weigh in mitigation. This legislation however is not only concerned with punishing people for deceiving our Authorities but also has as its aim punishing people who do this to protect the probity of travel documents issued by friendly governments. Part of the punishment in this case is aimed at their act in assisting in the presentation of a forged document purporting to be issued by a friendly government. The principle of comity of nations requires that we act so as to show our displeasure in their performing that act.

13. In this case because of their deliberate conduct in presenting the document and making the false representation fully knowing of the forgery, fully knowing that the representation was false, I cannot say that the sentences were in the circumstances manifestly excessive or wrong in principle. I must therefore dismiss each appeal.

Representation:

Mr. Wilson, C.C. for Crown

Mrs. Panesar (D.L.A.) for Appellants