HKSAR v. Cheung Wai Ming

CACC 32/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 32 OF 2005

(ON APPEAL FROM DCCC NO. 1165 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore Ag CJHC and Yeung JA

Date of Hearing: 11 August 2005

Date of Judgment: 11 August 2005

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.The applicant pleaded guilty in the District Court before Deputy Judge Tallentire on 14 December 2004 to a single charge of aiding, abetting, counselling or procuring the transfer to another without reasonable excuse of a travel document, namely a Hong Kong Special Administrative Region passport number HA 0946060, contrary to section 89 of the Criminal Procedure Ordinance, Cap. 221 and section 42(2)(a)(ii) of the Immigration Ordinance, Cap. 115.  On 4 January 2005, the applicant was sentenced to 26 months’ imprisonment against which he now seeks leave to appeal.

2.In a brief outline of the prosecution’s case which most adequately sets out the general factual background of the case, the judge said:

“	… an immigration officer, going undercover, responded to a newspaper advertisement for purchasing a passport.  She spoke to a man called Ah Fung.  She was offered $1,200 for a Hong Kong Special Administrative Region passport.  You, who introduced yourself as ‘Gary’ met her in McDonald’s restaurant.  You then took her to an MTR station where the pair of you boarded an MTR train and you gave her $1,000 for the passport.
	3.	You were arrested as you alighted from the train.  You admitted the offence, claiming to act to Ah Fung who would give you $50 for each passport you collected.”  (Appeal bundle p. 7)

3.The applicant has nine previous convictions, mainly for dishonesty, but on one occasion he was sentenced to 4½ years’ imprisonment for trafficking in dangerous drugs.  None of his convictions were for similar offences to the one we are presently considering.  The probation officer’s background report, which was prepared at the judge’s request after the applicant had been remanded in custody following his initial plea, was also not at all favourable.  It concluded with a somewhat pessimistic paragraph which reads:

“

12.

The gathered information converges that the Accused is a cunning and non-trustworthy person as he told many lies in this investigation. The Accused came from a single parent family, being the youngest among three siblings. Owing to his father’s early desertion and his mother’s busy job occupation, he lacked proper adult supervision and guidance since small. Upon associating with some dubious elements, he has turned wild since the adolescent stage. For the past twenty more years, he has been transgressing the law repeatedly. He married at a young age but his wife deserted the family soon afterwards leaving behind two sons under his family’s care. The two boys are now teenagers and they remain under the care of the Accused’s sister. In this investigation, the Accused claimed to be a caring and responsible father and maintain close tie with the sons. He reported a positive relationship with his sister and kept visiting her and the sons on weekly basis. However, the investigation has uncovered that the Accused is a big liar. His two sons had not met him for a very long time and his sister showed strong rejection against him. Indeed, their home address was kept confidential to avoid his disturbance. Clearly, he is not a welcome and responsible family member. Regarding the present offence, he adopted an evasive attitude despite his verbal remorse. He has put up many excuses, some of them are apparently unsound, to explain away his own responsibilities in the crime. Taken into consideration his past poor performance, his irresponsibility in the family, his quick relapse, his doubtful credibility and his evasive attitude in the present offence, he does not deserve a lenient treatment and his rehabilitation prospect is also considered not promising.” (Appeal bundle p. 14)

4.The offence is not one for which this court has laid down any guidelines.  It is plain that the offence was committed as part of the activity associated with a syndicate engaged in an illicit trade in buying and selling passports.  The offence which the undercover officer had been following up had commenced with an investigation into an advertisement appearing in the Oriental Daily dated 6 September 2004 headed: “Quick money for emergency” and it continued later by stating: “holding HKSAR passport or BNO, USA, Canada passport, sure get the highest price in the trade”.  A telephone number and the name ‘Fung’ was given for the purposes of responding to the advertisement.

5.In his only ground of appeal, Mr Loughran drew our attention to a number of decisions of this court in other cases bearing some similarity to the facts of the present application in an effort to show that a starting point of 3 years and 3 months’ adopted by the judge in this case may have been on the high side for an offender whose involvement had been at the lower end of the scale in terms of the overall scheme.  However, we note from the way in which the applicant carried out his part in this offence that he demonstrated considerable cunning as set out in the Summary of Facts (where the applicant is referred to as ‘D’.)  Paragraphs 7-9 read:

“	7.	At around 1456 hours, a chubby man who was later identified as Cheung Wai-ming (‘D’), wearing green checkered short-sleeved shirt, approached and sat opposite to PW1. D introduced himself as Gary and asked to examine PW1’s passport. PW1 handed P. 1 to D. After D had briefly examined P. 1, he made a phone call (as revealed from the call register of D’s mobile phone, the call was made to MP2). Later D told PW1 he could only offer HK$1,000 as abnormal spots were found over the photo image on the bio-data page. He also insisted to have the transaction completed elsewhere. D then handed P. 1 back to PW1 and asked her to follow him to the nearby MTR station. PW1 did as told.
	8.	D was observed to be on extreme alert to the surroundings during the whole process. On the way D received another call (later revealed from the call register as from MP2). When they entered the Kowloon Bay MTR Station, D purchased a single-journey MTR ticket at the location near to Exit A. He then led PW1 towards the entrance near Exit C and passed through the gates. Afterwards, he handed PW1 a HK$100 banknote and asked her to buy a single-journey ticket for one station. PW1 did as told. She observed that D had talked on his mobile phone while she purchased MTR ticket. Afterwards, PW1 passed through the gate and went up the escalator with D at around 1515 hours.
	9.	D led PW1 to the platform for trains heading [to] Yau Ma Tei Station. PW1 asked D how the transaction would be completed but D gave no reply. When the first train arrived, D instructed PW1 not to go abroad but to wait for the next MTR train claiming it looked crowded. They boarded the next train which later departed for Choi Hung Station. D handed PW1 2 HK$500 banknotes (‘P. 2-3’) and instructed PW1 to place P. 1 inside a pocket of her pants. When the train arrived at Choi Hung Station, D instructed PW1 to hand him P. 1. D then alighted and asked PW1 to stay inside the train compartment. He waved goodbye to PW1 when the train doors closed. PW1 then gave the signal to her other colleagues who then approached D.” (Appeal bundle pp. 3-4)

These facts would seem to contradict the account the applicant gave later that he was in effect a mere pawn being used by the man he called ‘Ah Fung’.

6.Whilst Mr Loughran may be correct in saying that this may have been a starting point which was on the high side, at least so far as a single passport is concerned, on all the facts of this case the sentence was not, in our opinion, manifestly excessive.

7.Accordingly, the application is dismissed.

Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent.

Mr Paul Loughran, instructed by Director of Legal Aid, for the Applicant.