HKSAR v. Kim Tae Kuk

CACC000449/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 449
(Criminal)

--------------------------

Coram: Hon Nazareth V-P, Mayo and Stuart Moore JJA in Court

Date of Hearing: 13 January 1999

Date of Judgment: 13 January 1999

---------------------

J U D G M E N T

---------------------

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

1. The appellant pleaded guilty to two counts of aiding and abetting the use of a forged travel document, and two counts of aiding and abetting the making of a false representation to an immigration officer. He was sentenced to 21 months imprisonment on each of the four counts to run concurrently.

2. He is a Korean businessman, aged 43 with 3 children and he has a clear record. The facts are these. The appellant with two other persons was detained at the airport. The two persons were waiting to board a Cathay Pacific flight to Tokyo. Each of those two persons was in possession of a forged Korean passport which they had used and each had made false representations to immigration officers in connection with the passport in his possession. The appellant was found in possession of two People's Republic of China identity cards, one People's Republic of China alien certificate, one Korean passport and one cancelled Korean passport. Continuing with the facts, which we take from the reasons for sentence given by the judge, the true situation was that the two other persons were related to the appellant's wife and they had been able, through the good offices of the appellant, to procure the two forged Korean passports whereas they were in fact Chinese nationals. They wanted to work in Japan. They could not get Chinese passports so it was arranged for them to have those forged Korean passports to enable them to get to Japan. The appellant who had business connections in China, Korea and Japan, himself being a Korean national, had actually contacted a friend on behalf of the other two persons. The friend had introduced him to another person who was able to arrange for the two forged passports. It appears that the appellant's original plan was simply to introduce the forger or forgers to the two persons and not to take any further part. But one of the Korean contacts had dropped out of the scheme and the appellant therefore accompanied the two persons.

3. In his submissions on behalf of the appellant, Mr Albert Luk takes several points. His general submission is that the sentence of 21 months was manifestly excessive and that the starting point taken by the learned judge was wrong for the following reasons. Although this was a serious case, he says, it was not the worst of its kind. He also submits that the appellant was not recruited to escort the two persons. In making that submission, he points to cases in which convicted persons had been recruited to escort persons and had been paid. The appellant, he points out, was not paid for doing what he did. He adds that the two persons assisted did not have any intention to stay in Hong Kong. He emphasises that the two persons assisted were related to the appellant's wife. That, in fact, was acknowledged by the judge in sentencing him. What the judge said was this:

"In the defendant's favour is, first of all, the fact that he has co-operated with the authorities from the outset and pleaded guilty at the first available opportunity. He is entitled to a discount from the starting point of sentence on that account. I also take into account that since these other persons were members of his wife's family, he would have been under some pressure from them to take the course of action that he did."

The judge did not overlook any of Mr Luk's foregoing points nor did he overlook the contention that the appellant was likely to lose his job. Finally, in relation to the matters before the judge, Mr Luk mentions that this was an isolated incident and that the appellant had a clear record. That the judge could not have been unaware of those matters.

4. It is upon the basis of those points that Mr Luk submits that the starting point taken by the judge was wrong. However, nothing in the authorities he refers to provides any foundation for that submission. There has been no tariff laid down by the courts for the offence of aiding and abetting the use of a forged travel document; see R v Bhagwant Singh-Padd a MagCrApp 1447 of 1988 per Bewley J, unreported, in which it is noted that there is a wide range of individual circumstances in which such offences can be committed making a tariff inappropriate. Bewley J, however, placed such offences in four categories of seriousness, the second of which relates to the use of false passports by persons seeking to leave China via Hong Kong, so that it can be seen that the offences here are at the top end of those categories of seriousness.

5. Also of assistance is the judge's identification of the gravamen of using a forged passport by reference to the dictum of Cons J (as he then was) in R v Yu Wing-wut CrApp 346 of 1984 i.e. to preserve the comity between nations and to maintain the good name of Hong Kong abroad. Those objects have since been recognised in other authorities.

6. Upon that basis, it can be seen that there is nothing before us to fault the starting point of three years which the judge adopted.

7. We turn then to the submission that the sentence of 21 months was manifestly excessive. We have already indicated from a quotation from the judge's reasons, the earlier part of process by which he arrived at his sentence. He continued in his reasons in the following way:

"I also have to take into account that this is an isolated incident. The defendant is a person of clear record and his counsel has pointed out to me, the defendant, being a Korean, will have the additional hardship of language barrier, cultural differences and the like whilst in prison.

Having taken a starting point of 3 years for each of the offences, I propose to allow a discount of 1 year in respect of that plea of guilty and co-operation with the authorities, and for the additional hardship which the defendant is going to face by being a foreigner, I think a further reduction of some 3 months may be allowed. I really do not see that I can find any other grounds for further reduction from the starting point."

To what we have already said, we add this, that in reaching his starting point the judge would have had regard to all circumstances of the matter including the fact that the appellant acted in assistance of close relatives of his wife. We mention that because Mr Luk has identified this as one factor to which the judge did not specifically relate any part of the discount he allowed. However, as said, he could not have overlooked that matter in taking his starting point. The conclusion, therefore, must follow that there are no grounds for interfering with the judge's sentence. We find no merits in the grounds mentioned.

8. There remain the matters categorised by Mr Luk as change of circumstances. The changes he mentioned are first, that the wife of the appellant is in a critical condition. She is now said to be suffering from stomach cancer. A certificate has been produced to us. It is, of course, in Chinese. The translation is not very easy to follow but the diagnosis strangely enough specifies gastric ulcer deterioration. Presumably that is thought to be the same as stomach cancer. However that may be, the suggested therapy is stated to be "Severe situation, operation has been approved the soonest the better". Nonetheless we are told by Mr Luk that this does not mean the operation has been approved.

9. The other change of circumstances Mr Luk relies upon is that a vessel, owned or operated by the company the appellant worked for, has been missing together with her Chinese crew members in Indonesian waters since about 27 September. The family members of the crew, he says, are lodging claims and are taking violent action against the company. It is going through turbulent times and as the officer-in-charge, he is required to return urgently to settle the matter.

10. From what we have already said, it will be seen that the judge took into account the facts that the appellant is likely to lose his job. So in a sense he has already discounted the matter.

11. Having given due consideration to these matters now advanced as change of circumstances, we do not think that they warrant our intervention. In the result, we dismiss the appeal.

Representation:

Mr P.S. Chapman, SADPP and Mr Henry Hung (DPP) for the Respondent

Mr Albert W.H. Luk (M/s Ivan Tang & Co) for the Applicant