The Queen v. Lo Ko Ping

HCMA000734/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 734 OF 1988

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BETWEEN

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Coram: Hon. Mr. Justice Barnes in Court

Date of Hearing: 16 September 1988

Date of Delivery of Judgment: 18 September 1988

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistrates' Court to three charges alleging the use of a forged travel document for the purpose of Part II of the Immigration Ordinance, an offence contrary to section 42(2)(b) of that Ordinance.

2. The brief facts of the case put before the Magistrate revealed that the Defendant had in 1984 left China for the Philippines travelling on a passport issued to him by the People's Republic of China. He took up residence in the Philippines and, in September 1987 because he was desirous of returning to China for business purposes and being unable to obtain a travel permit readily from the Embassy of the People's Republic of China in the Philippines, he obtained a Philippine passport through the influence of a person working in the Philippine Foreign Ministry. He was not entitled to the issue of a Philippine passport as he was not a naturalized citizen of that country. He used the passport which he did obtain in that manner on some 46 occasions.

3. Three of the charges to which he pleaded guilty were sample charges. Tile Magistrate sentenced him to imprisonment for 12 months on each charge and ordered that the sentences run concurrently. It should be said that the facts which were put before the learned Magistrate were provided by the Appellant himself when he was interviewed under caution by an officer of the Immigration Department.

4. He now appeals against the sentences and Mr. Walters on his behalf has referred me to an appeal which was heard as recently as the 9th August by Hopkinson J. In that case, the Appellant had also been sentenced to imprisonment for 12 months on a charge of using an unlawfully obtained travel document for the same purpose contrary to the same section of the Immigration Ordinance. Hopkinson J. allowed the appeal and reduced the sentence to imprisonment for 9 months. Mr. Walters has drawn my attention to the similarity of the facts in the two cases. The only aggravating factor present in this case and not present in the other is that this Appellant used the forged doument on 46 occasions. Mr. Walters, however, submits this is not an aggravating factor in that the number of times a person may use a forged document of this type without being detected depends very much on chance. It does seem, however, that if a person uses a forged document on 46 occasions without being detected then the forgery must be very effective.

5. Hopkinson J. mentions in his judgment that Counsel made reference to a decision of the Court of Appeal where a suggested tariff for this type of offence was imprisonment for 15 months but no one was able to produce a copy of the Court of Appeal's judgment. The judgment has been produced before me. It is R. v. Yue Wing Wat (Crim. App. No. 346 of 1984). In that case, it was said that a useful starting point in case of this type is to be found in Crim. App. No. 934 of 1981 where the Court approved 4 sentences of imprisonment each of 15 months for the possession of forged identity cards. The Court appears to have accepted the contention of Counsel for the Crown that the forging of a travel, document is a more serious offence in that it "entails the possibility of international repercussions".

6. I was also referred to a more recent decision of the Court of Appeal delivered only 8 days ago in which the Court upheld sentences of 18 months imprisonment plus a fine of $10,000 on each of two charges of possessing false or unlawfully obtained travel documents contrary to section 42 of the ordinance, In that case, the Appellant was convicted on 5 charges alleging offences under the Immigration Ordinance; three of which alleged using such a document for which the sentence was imprisonment for 2 months. The result was that the appellant was sentenced to an overall term of 2 years for the totality of his criminal conduct in relation to false travel documents. He had two false passports, one a Malysian and one a Philippine. The Malaysian was issued in a name other than his own and he had used it on 16 occasions. Mr. Walters points out that the criminal conduct of the Appellant in that case was much more serious than the conduct of the Appellant in this case and I agree.

7. In this case there was as Mr. Walters contends, no attempt by the Appellant in using the document to conceal his true identity. His case is quite different from the one which the Court of Appeal dealt with a week ago.

8. In this case, I do not think that the sentence is too severe in view of the fact that the Appeallant used this false document on 46 occasions. I think that distinguishes his case sufficiently from that with which Hopkinson J. dealt as to enable me to say that there is no reason why he should receive the same sentence as the man. who used the false Brazilian passport in the case dealt with by Hopkinson J. I can see no ground for interfereing with the sentences imposed by the learned Magistrate. I, therefore, dismiss the appeal.

Representation:

Mr. J. Halley, Senior Crown Counsel for Crown.

Mr. R. G. Walters (Simon M. Chan & Co.) for Appellant.