The Queen v. Chen Ying

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 47 OF 1987

__________

BETWEEN

__________

Coram: Hon. Power, J, Macdougall & Wong, JJ

Date of Hearing: 20th March 1987

Date of Delivery of Judgment: 20th March 1987

______________

J U D G M E N T

______________

Wong, J.:

1. The Applicant was convicted in the District Court of two offences, namely conspiracy to obtain a false travel document, contrary to common law, and using a false travel document under the Immigration Ordinance, Cap. 115.  She was sentenced to 12 months' imprisonment on each charge, to be served concurrently and she now appeals against both conviction and sentence. In relation to the charge of conspiracy, the Applicant was jointly charged with two other persons who are not before us.

2. At 19:55 hours on 2nd October, 1986 the Applicant arrived at the Hong Kong International Airport and presented herself for clearance at an immigration counter with a Bangladesh passport. The fact that she was travelling on such a passport and could only speak Chinese aroused the suspicion of the Immigration Officer and she was detained. A statement was later taken from her by another officer. It is right to say that this statement forms the basis of the evidence against her. 

3. In the statement, she revealed that she was born in Guangdong, China and came to Hong Kong from China on 22nd September, 1986 on the strength of a passport issued by the People's Republic of China. The reason which brought her here was this. About two years ago she came to know a Singaporean, See Lub-hok who was jointly charged with her as the 2nd accused. They intended to get married and then settle down in Singapore. But she knew that she would not be allowed to go to live in Singapore if she held a Chinese passport and she discussed this matter with See.  Sometime in June or July last year, See brought a man Yeung Chit-choi to see her in Guangzhou, China where, after Yeung had told her that he could help her to obtain a Bangladesh passport, she gave him her photographs and personal particulars. In September, she again met Yeung in Guangzhou where he told her that her Bangladesh passport was ready. As a result she used her Chinese passport to travel to Hong Kong with Yeung on 22nd September.

4. In Hong Kong, she met See and on 26th September the three of them left for Dacca, the Bangladesh capital. She was still travelling on her Chinese passport. In Dacca, Yeung gave her a Bangladesh passport which contained particulars, which she knew to be false, such as her name, place of birth and the name of her father. It was on her return to Hong Kong with See from Dacca via Bangkok on 2nd October that she was stopped and arrested.

5. Mr. Bruce for the Crown conceded that the conspiracy charge was not justiciable by the courts of Hong Kong in the form in which it was framed. We, therefore, do not need to go into the question of jurisdiction.

6. However, apart from the concession made by Mr. Bruce, we are satisfied that there was no evidence admissible against the applicant before the trial judge to support a charge of conspiracy against her. It seems that the judge was under the wrong impression that there was evidence admissible against her that the passport had been obtained by bribery.

7. The error appears to have arisen because on the trial of a preliminary issue to determine whether the conspiracy charge was justiciable by the court, a summary of facts was used with the consent of the parties as a basis on which the judge could make his ruling. The prosecution evidently thought that it would be able to establish these facts on the trial of the general issue.

8. One matter referred to in the summary was that the Bangladesh passport had been obtained by bribery. Having succeeded on the preliminary issue the Crown proceeded on the trial of the general issue where the only admissible evidence adduced against the Applicant was her cautioned statement to the Immigration Officer.

9. In that statement, the Applicant said that she was told by Yeung that he could help her to obtain a Bangladesh passport and that as a result she gave him two photographs and a negative of herself and supplied him with her personal particulars. 

10. In the absence of any evidence to the contrary we must assume that the photographs and negative were genuine and the particulars were true.  As there is nothing in her statement to suggest that there had been any discussion or agreement, either in China or later in Hong Kong, concerning bribery, we fail to see how the judge could have been found that she conspired with others to obtain a false Bangladesh passport as alleged.

11. With the charge of conspiracy out of the way, Mr. Wong Po-wing for the Applicant only addressed us on the ground relating to the cautioned statement.  Having perused the relevant parts of the record and having considered his arguments, we come to the conclusion that there is no merit in what he advanced.  The cases which he cited to us are decisions of general principles governing the admissibility of cautioned statements but each case must be decided on its own facts in the light of those principles.  We are satisfied, having examined the relevant parts of the record and having listened to the arguments, that the trial judge addressed his mind to all the issues that were raised before us.  We are not persuaded that the trial judge was wrong in coming to the conclusion to which he did.

12. We would therefore grant the application for leave to appeal on the first charge and treat the application as the hearing of the appeal itself, we allow the appeal, quash the conviction and set aside the sentence on this charge.

13. The application for leave to appeal on the second charge is refused.  We are satisfied that the charge is supported by evidence.  On the question of sentence, we bear in mind that she was convicted after a contested trial.  We take the view that a deliberate attempt to mislead an Immigration Officer is a serious offence which must merit a term of imprisonment bearing in mind the maximum sentence for such an offence is 14 years imprisonment and a fine of $50,000.

14. But we are impressed with the argument that this woman had initially entered Hong Kong on her People's Republic of China passport and was entitled to re-enter without using a false document. We believe that she was misled by her companions, one of whom persuaded her to abandon her real passport. We consider that a sentence of 12 months in normal circumstances is not excessive but taking into consideration the very special factor in this case we are prepared to reduce the sentence to one of six months.

15. Leave to appeal against sentence is granted and treating the application for leave as the hearing of the appeal, we allow the appeal against sentence in respect of this charge and reduce it to six months.

Power J,

16. I concur and make it clear that the decision to reduce the Applicant's sentence has been reached because of the unusual circumstances of this case. The Applicant, although entering Hong Kong illegally, was not an illegal immigrant in the sense which that term is normally used, that is she was not a person who had no right at all to enter the colony. She was a person perfectly entitled to transit through Hong Kong if she used the document validly issued to her. She was, however, persuaded by others to act in the way she did. We consider in these circumstances it was proper to reduce the sentence to one of 6 months.

Macdougall J,

17. I agree with what my brethren have said.

Mr. Wong Po-wing (Gallant Y. T. Ho & Coo) for Applicant

Mr. Andrew Bruce for Respondent/Crown