HKSAR v. Chen Wenkai

HCMA 1116/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1116 OF 2005

(ON APPEAL FROM ESCC 4171/2005)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 29.11.2005

Date of Judgment: 29.11.2005

Date of Handing down Judgment: 30.11.2005

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J U D G M E N T

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Charge 

1.The Appellant pleaded guilty to an offence of “Possession of a Forged Travel Document”, contrary to section 42(2)(c) (i) of the Immigration Ordinance, Cap. 115. He was sentenced to 15 months imprisonment. He appealed against the sentence. I dismissed his appeal after hearing his submission. I gave reasons at the time and I now reduce those reasons in writing.

Facts

2.The admitted facts disclosed that the Appellant was intercepted by Immigration Officers at the airport when he tried to board a flight to Toyko using a forged passport. All the personal particulars (except the photograph) stated on the passport did not relate to him. He claimed someone in Fujian had arranged to provide him with work in Japan at a cost of RMB200,000 and he was supplied with the forged passport.

Grounds of appeal

3.The Appellant’s home-made grounds of appeal were that (a) he was deceived into doing the illegal act; (b) his family faces hardship; (c) he has a handicapped 4-year-old daughter; and (d) he is the sole breadwinner of the family and wishes to go back early to look after the family.

4.Before me, the Appellant reiterated the difficulties he faces. He also said another inmate convicted of the same offence was only sentenced to 6 months imprisonment. He urged the court to reduce the sentence imposed.

5.When the Appellant was asked to elaborate on how he was deceived, he said he did not know the said passport was forged. When it was pointed out to him what he had admitted in court when he pleaded guilty, he said he was confused at the time and did not know what he had admitted.

6.After going through with the Appellant - step by step - what had taken place before the learned magistrate, he then confirmed without reservation that he had pleaded guilty and that the particulars on the passport (save the photograph) did not relate to him. There is no issue of any reversal of plea.

Reasons for Sentence

7.The learned magistrate referred to, among other cases, the case of HKSAR v Yim Lee Kuen HCMA 1181/2002, in which the court reviewed a number of decided cases relating to immigration offences involving the production of forged document. The possession of a forged passport was shown to be an offence generally attracting terms ranging from 15-18 months upon a guilty plea.

8.The learned magistrate also referred to the suggestion of a distinction to be drawn between those in transit and those who used the forged travel document to gain entry into Hong Kong and observed that such an approach appeared no longer current. He said “in a modern age, it might be thought to be highly undesirable for courts to draw such distinctions, which smack of providing greater protection for home interests than those of overseas countries.” I would add here that I am in agreement with the learned magistrate’s view.

9.The learned magistrate was of the view that there was no difference in criminality between possession of a forged travel document and the possession and production of forged identity card and adopted a starting point of 22 months. The sentence was reduced to 15 months to reflect the plea.

Judgment

10.I have a chance to read what was said in mitigation before the learned magistrate. The Appellant’s family circumstances were before the court.  The learned magistrate was made aware of the mental illness suffered by the Appellant’s wife and the handicap suffered by the young daughter. The Appellant’s then legal representative submitted to the learned magistrate that the Appellant’s had a “quite tragic family background” and the learned magistrate expressed sympathy for the Appellant.

11.Nothing was said to the learned magistrate about the Appellant being ‘deceived’ and the Appellant admitted the facts before the learned magistrate.

12.Although the Appellant tried, before me, to say that he was deceived, he later re-confirmed that he knew full well the particulars of the passport (save the photograph) did not relate to him at all. There was simply no truth in the Appellant’s assertion. He was fully aware of the arrangements made through the middleman for him to work in Japan, with the provision of the forged passport. The Appellant tried to ‘play down’ his role in order to ask for a reduction of the sentence.

13.Even assuming for the moment that another inmate was sentenced to 6 months imprisonment for the same offence, that is not a ground of appeal. There might have been exceptional circumstances in that inmate’s case to warrant a shorter sentence. Where different accused were given different sentences by different judges/magistrates on different occasions, the only consideration is whether the sentence passed on the accused is appropriate: see R v Lam Mo-kwong Cr. App. 175/1992 and Sentencing in Hong Kong, 4^th ed. Page 180.

14.Family hardship which is usually attendant upon the conviction is to be viewed as part of the price an accused has to pay for the crime. While I, like the learned magistrate, sympathise with the predicament faced by the Appellant, I see no exceptional grounds to reduce the otherwise proper sentence.

15.As the sentence imposed was neither wrong in principle nor manifestly excessive, the appeal was dismissed.

Ms. Mickey FUNG Mei Ki, Government Counsel of the Department of Justice for the Respondent

Appellant CHEN Wenkai in person