The Queen v. Wan Ho Hung and Another

CACC000342/198

BETWEEN

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Coram: Hon Fuad V.-P., Hunter. J.A. & Macdougall, J.

Date of hearing: 30 December 1988

Date of delivery: 30 December 1988

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J U D G M E N T

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Hunter, J. A. :

1. This is the judgment of the Court.

2. The applicants, Wan Ho Hung and Cheung Fai Leung both seek leave to appeal against sentences imposed upon them on 13th July 1988 by H H Judge Evans, when they both pleaded guilty to a number of charges, and were sentenced, in the case of the first applicant Wan to a total of 3 years imprisonment, and in the case of second applicant Cheung to a total of 18 month imprisonment

3. The event's can be shortly described On 28th April 1983 both applicants went to Kai Tak Airport each presented a forged Malaysian passport and both claimed to be the persons named in their respective forged passports. The first applicant also was found to have in his possession forged dies, two for Hong Kong Immigration stamps, one for an arrival stamp and one for a departure stamp, and one for a Malavsian stamp.

4. The result was that the first applicant was charged first with using a forged travel document, namely his forged Malaysian passport in the name of Yap; and secondly with making a false representation that he was the person named in that passport. The second applicant was likewise accused of using a forged travel document, his Malaysian passport in the name of Liew : that was the 4th charge. The 5th charge against the second applicant was that he made a false representation that he was the person named in that passport. The second applicant was also separately charged with remaining in Hong Kong without the authority of the Director of Immigration. He was in other words an illegal immigrant, and he had covered his presence here in part with the use of this forged passport. Those offences were all charged under the Immigration Ordinance against both applicants.

5. The second group of offences were charged only against the first applicant. The first was possession of a forged die contrary to section 76(2) of the Crimes Ordinance. The charge related to the forged Hong Kong Immigration arrival stamp. The 8th charge against the first applicant was possession of a forged die under the same Ordinance. That was the forged departure Hong Kong Immigration stamp. The 9th charge against the first applicant was of possession of an implement fit and intended for forgery contrary to section 76A of the Crimes Ordinance. That charge related to the forged die for the Malaysian departure stamp.

6. These were a separate group of offence charged under the Crimes Ordinance The maximum sentence provided for by section 76(2) is 7 years; and that under section 76A is 14 years. So that the trial judge, faced with pleas of guilty by both applicants to all those respective charges, had to deal and dealt separately with the two groups of offences.

7. He dealt first with the offences under the Immigration Ordinance of using the forged passports with the additional Particular offence relating to the second applicant only. In relation to these he said :

"I considered a sentence of 18 months imprisonment appropriate in each case for using a forged travel document accompanied by a false representation to an Immigration Officer".

In the case of the second applicant he felt it appropriate to impose a further sentence of 6 months imprisonment for remaining in Hong Kong without permission. He made that concurrent to his sentences of 18 months which produced the total sentence of 18 months on the second applicant. It had been urged upon us that that total sentence was excessive.

8. As far as the Immigration Ordinance is concerned, as long ago as 1984 in the case of R v Yu Wing Wut no 346 of 1984, this Court said that in the case of a Person who pleaded guilty to possession of a forged travel document namely a forged passport, and also to being unlawfully in Hong Kong without the appropriate authority :

"Appropriate sentences in the circumstances of this case would in our view be 18 months and 6 months respectively".

Applying those words to the second applicant this Court was saying that it was appropriate to impose sentences of 18 months for the use of a forged passport (and the representation that went with it) and 6 months for his unlawful presence in Hong Kong. Those are the precise figures taken by the trial judge here. These is a further difference that here the trial judge imposed 6 months concurrent for unlawful presence; whereas this Court in Yu said that was in fact wrong; that this was a separate offence; and that it would be appropriate to impose, in whole or in part a consecutive sentence, for that offence. In the light of that authority, where this Court was seeking to suggest a guideline for this type of offence, it is in our judgment quite impossible to argue that in the case of the second applicant the total sentence of 18 months was in any way excessive

9. The same observations apply equally to the first applicant in respect of the corresponding sentences imposed upon him for the use of his Malaysian passport. One then has to consider the appropriateness of the sentences which the judge further imposed in respect to possession of the forged dies. These were the additional concurrent sentences of 18 months imprisonment but consecutive to the Immigration Ordinance sentences making in his case the total sentence of 3 years.

10. The first criticism which the applicant has directed to that is that these sentences should not have been consecutive. That is his main complaint. There is no substance in that at all. These offences were quite separate and distinct from the Immigration Offences, and arise under a different Ordinance where substantial maxima are prescribed by the particular sections in that Ordinance. So no criticism can be directed to the trial judge on that account.

11. When dealing with this aspect of case, the judge says this :

"I was of the mind that the possession of the immigration chop facings by the 1st accused in the circumstances of the case ought to be regarded as a separate matter".

A view with which we have already expressed our agreement. He goes on:

"and one having a measure of seriousness in that not only could these chop facings have been used to make entries on other passports but indeed, in this case, actually had been".

That was a reference to the fact that the two Hong Kong chops had been used to make entries in the second applicants passport. The judge goes on:

"The 1st accused was not just a keeper of the chops but had been caught actually carrying them away from Hong Kong no doubt for further use although perhaps not necessarily by him".

With these observations we entirely agree. Possession of these chops, to which this applicant pleaded guilty, shows that that he was actively participating in the manufacture of false entries in passports and false passports. This Court has more than once emphasised the international seriousness of offences of this nature. The point was made by the applicant himself in his representations to this Court. By way of mitigation he advanced the argument that if on his visits to Japan he had used his own Hong Kong travel document he could have stayed in Japan only 2 weeks, whereas by using his forged Malaysian passport he was able to stay there for 3 months. It is precisely these considerations which point to the public seriousness of these offences. Reference has been made in the course of argument to the decision of this Court in R v Horst Klaus Lother Berger no 598 of 1987 where Silke V.-P. pointed out that "these were serious matters deserving of consecutive sentences." Again we see no basis for criticising the total period of 3 years imprisonment imposed by the judge judge upon that applicant.

12. Finally there is one observation that we desire to make. Both applicants have sought to rely upon other decisions of different courts and sometimes of this Court by way of comparables. There is now conveniently set out in the current edition of Archbold in paragraph 7-63 at p 987, a citation from a judgment given by Dunn L J, in England in the case of R v De Havilland (1983) 5 Cr APP R(S)109, 114 in which he points out that there are occasions when the criminal division of the Court of Appeal in England lays down sentencing guidelines. Those cases are useful authorities which can and should be cited to both trial judges and to appellate courts for their assistance. But in the vast bulk of cases decided in the courts the decisions represent the particular sentencing court's attempt to deal with the special facts of the offences and the offenders which appear before it. Constant reference to those decisions is frankly of very little assistance indeed. The most it can do is to give an overall impression as to the total range of sentences imposed for particular types of offences. It gives neither the sentencing court, nor the appellate court, any real guidance as the appropriate position in that range for the applicant or the defendant standing before it. A great deal of time can be wasted in this court by reference to a string of cases of that nature.

13. In those circumstances both applications fail and must be dismissed.

Representation:

1st Applicant in person

David Tolliday Wright (M/s So & Karbhari) for 2nd Applicant

S E Stone, Senior Crown Counsel, for Crown