R. v. Chang Su Jian

HCMA000476/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 476 OF 1995

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Coram: The Hon. Mr. Justice Leong in Court

Date of hearing: 31 August 1995

Date of delivery of judgment: 31 August 1995

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J U D G M E N T

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1. The appellant was one of five defendants who were arrested at the boarding gate at Kai Tak Airport. They were about to board a flight to Japan. The appellant was found to be in possession of four Hong Kong identity cards, the photographs on which were substituted with those of the other four defendants. These four defendants were found possessing travel documents also substituted with their own photographs. The appellant admitted that she had been recruited to escort the four defendants from Guangzhou to Hong Kong and using the forged identity cards she made the necessary departure arrangements for them to go to Japan. She also admitted that for each defendant she assisted, she would receive RMB$10,000.

2. She was charged with possession of forged identity cards. She pleaded guilty and was sentenced to 2 years' imprisonment.

3. She now appealed against sentence.

4. The learned magistrate considered it "a serious problem in persons, particularly from the Mainland, in possession of forged or unlawfully obtained travel documents, using Hong Kong as a route to other countries." In his reasons for sentences, he said :

"Offences relating to the use of such travel documents are serious as they usually deprive a country of knowing the true identity and nationality of persons entering their territories, see R. v Wang Ju Ren Crim App No. 26 of 1988..... They are offences which can only be committed if other persons are prepared to undertake the obtaining and photo-substituting of travel documents and identity cards, and to act as couriers or escorts to travellers using unlawfully obtained or forged travel documents. They are an integral part of the scheme ...... ."

The learned magistrate considered that the present case warranted the maximum sentence of 2 years' imprisonment. He gave little credit for the plea of guilty.

5. Mr. Fu, for the appellant, submitted that the learned magistrate was wrong in imposing the maximum sentence which was for the worst type of the offence. He also submitted that the learned magistrate should have given discount for the appellant's plea. The appellant was informed by her father while she was serving in prison that her father was in a destitute situation. He had gone to Japan to look after the appellant's children but found himself stricken with illness. He had a language problem in Japan and hoped that the appellant could relieve him from his desperate situation.

6. Mr. Fu referred to the following cases :

R. v Lam Ping Chun [1988] HKLR 161. There, it was held for offences of using a forged identity card and of landing or remaining unlawfully in Hong Kong, in normal circumstances the sentence would be 15 months' imprisonment. The actual use of a forged or other person's identity card to obtain some further or particular benefit could be considered an aggravating feature.

R. v Lam Shui Leung and others [1986] HKLR 57 where 15 months' imprisonment was imposed for using another person's identity card in order to masquerade as a person entitled to be in Hong Kong on a plea of guilty. In this case, reference was made to R. v Ng Sui Hing Crim App No. 362/1985 and Chan Ming Crim App No. 353 of 1983 where 15 months' imprisonment for a plea to possession of a forged identity card by an illegal immigrant was considered to be appropriate.

7. Mr. Fu submitted that the normal sentence of 15 months was appropriate in the present case and the learned magistrate should have allowed a discount from there for the appellant's plea of guilty.

8. Mr. Pang for the Crown argued that this was a case which warranted the maximum sentence of 2 years since the appellant was caught in the course of leading the four defendants possessing forged travelling documents to Japan. The appellant assisted the four defendants go through immigration and gave them the forged identity cards to enable them to go to Japan. He submitted that this was not one of the run of the mill cases for which the normal sentence of 15 months would be appropriate. Mr. Pang referred to Leung Shui Ming and others v. the Queen [1975] HKLR where the Court of Appeal concluded that it was not in every case that a discount should be made on a plea of guilty and

"each case must depend upon its own facts and in certain circumstances, pleas of guilty are almost inevitable ...... in such a case, the judge has a discretion whether to make an allowance or not."

Mr. Pang relying on this case, submitted that in the circumstances of the present case, the appellant's plea of guilty was inevitable and the learned magistrate was entitled to give no discount.

9. The present case is undoubtedly a serious one. The appellant had been recruited to escort persons from Mainland China who only possessed forged travel documents to go through immigration and she provided them with forged identity cards to go on an international flight to make entry to Japan. She would obtain a RMB$10,000 for each entry. It was obvious that she was part of a scheme to enable persons who were not legally entitled, to gain entry into a foreign country on forged documents. The benefits she could derive from this scheme is not insubstantial. The present case is very much different from the usual case of possession of a forged identity card by an illegal immigrant to enable him to stay here. The learned magistrate was entitled to take a serious view and regard this as the worst type of the offence.

10. The Court of Appeal in A.G. v Wong Kwok Wai [1991] 2 HKLR 385, accepted that pleas of guilty, particularly those made in first opportunity are to be actively encouraged but if a person is caught red handed, that takes something away from that point in mitigation. The same view was held in R. v Kwok Yee William Cr. App. 452/1993 where Silke V. P. said :

"Generally, pleas of guilty are to be encouraged and that encouragement can only be given by a substantial reduction in sentence from that which would have been imposed after a full trial. Pleas of guilty save a great deal of taxpayers' money, the time of witnesses and the time of court."

11. The appellant was caught in the act. Nevertheless, her plea of guilty had saved court time and expenses and in recognition of that she should be given some discount. In the circumstances of the present case, a discount of 3 months is warranted. The appeal is allowed and the sentence of 2 years is reduced to one of 21 months.

Representation:

Mr. Derek Pang, APCC for the Crown.

Mr. C. S. Fu, instructed by M/s. K. M. Lai & Co. for the Appellant.