HKSAR v. Ma Yuen Chi

CACC 537/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

criminal APPEAL NO. 537 OF 2005

(ON APPEAL FROM DCCC NO.775 of 2005 )

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Before: Hon Stuart-Moore VP, Yeung JA and Beeson J in Court

Date of Hearing:  14 June 2006 

Date of Judgment:  14 June 2006

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.The applicant – Ma Yuen-chi arrived at the Hong Kong International Airport from France on 12 June 2005. A Customs officer found in the interior lining of his luggage four false Japanese passports and seven false British National (Overseas) passports. The quality of the forgeries was good.

2.The applicant gave the following explanation to the Customs officer. He said his plan was to go to Cuba to meet a Taiwanese friend. However, he received a phone call from another friend (“Tai Chin”) from Madrid and decided to meet him there. “Tai Chin” gave him the false passports and asked him to take them to Shenzhen. As he was unable to contact his Taiwanese friend in Cuba, he decided to return to Fuzhou via France.

3.The applicant was charged with possession of the eleven false passports. He pleaded guilty to the charge before Judge Wright in the District Court and was sentenced to three years and four months’ imprisonment.

4.The applicant seeks leave to appeal against sentence.

5.The judge rejected the applicant’s explanation for going to Madrid. He pointed out that the applicant took a circuitous route home by flying from Paris to Hong Kong when he had an unused boarding pass for a flight from Madrid to Paris on 11 June 2005, the day after he had arrived in Madrid. The applicant also had unused airline tickets routed Madrid/Cancun/Havana /Cancun/Madrid, issued on 9 June 2005.

6.The judge assumed that the applicant was just a courier for the false passports. The judge pointed out the seriousness of the offence involving false passports and took the view that the minimum starting point is five years’ imprisonment. The judge discounted the sentence by one-third on account of the guilty plea and therefore sentenced the applicant to three years and four months’ imprisonment.

7.Mr Marray, counsel for the applicant, submits that the five-year starting point, bearing in mind the nature of the offence and the role of the applicant, is manifestly excessive. Mr Marray seeks reliance on HKSAR v Chu Hak Lan CACC 277/1999 and HKSAR v Wong Kong Yu CACC 279 of 2005.

8.This court was not called upon to deal with sentence in Wong Kong Yu, and therefore the case is not helpful. In Chu Hak Lan, the starting point of four years’ imprisonment for conspiracy to possess four passports issued by the Republic of Brazil was not queried as the appeal in that case turned on a different point altogether.

9.With respect, no assistance can be derived from those cases.

10.Offences relating to false passports are serious offences as there is an obvious international dimension to them. The judge was, in our view right to comment in his Reasons for Sentence as follows:

“16. The use of false passports has, for many years, been a matter of real concern because of the effect that it has on the right of countries to determine who may and may not be admitted to their territories. The various methods used by those who seek to smuggle persons into different countries are diverse: the use of false passports is but one of those methods.

17. In 1990 Bokhary J., as he then was, passed the following observation (R v Garcia [1990] 1 HKLR 599 @ 601):

‘There is a mutual responsibility shared by all nations in regard to the proper identification and legitimate control of persons moving across international boundaries. There are very good reasons – even in the best of times – why this is important. And nowadays – with the rapid movement of ordinary criminals and worst throughout the world – these things have become even more important. …These offences are committed in a variety of circumstances; and the circumstances of each case must be borne in mind. The court must never lose sight of   precisely what it is dealing with in each case.”

18. In current times there must be further concern about the use of false passports by those who are not intent simply upon illegal relocation but upon disruptive conduct once they have reached their goal. Security, generally but particularly cross-border security, is a matter of grave international concern in the times in which we now live. The 11 false passports which you had in your possession were designed to breach that security.”

11.The applicant did not possess a false passport for his own use. He was, on the judge’s finding, a courier of eleven false passports, working possibly for a major syndicate.

12.In R v Jiang Shou Fa, unreportedCACC 380/1996, the defendant pleaded guilty to two charges relating to a total of 27 false passports. This court took the view that the proper starting point should not be less than six years.

13.This is a straightforward case of a courier carrying a large number of false passports. There was no mitigating factor other than the guilty plea for which the applicant had been given the one-third discount.

14.The starting point adopted by the judge is not manifestly excessive or wrong in principle.

15.We refuse leave to appeal against the sentence.

Ms Louisa Lai SADPP of the Department of Justice, for the Respondent.

Mr John Marray assigned by the Director of Legal Aid for the Applicant.