The Queen v. Wong Kwai Pui

MCA 796/87

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HEADNOTE

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18 months proper sentence for possession of forged passport – sentences in Magistrate Court to be concurrent or consecutive.

IN THE SUPRENE COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 796 OF 1987

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 27th November 1987

Date of delivery of judgment: 8th December 1987

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JUDGMENT

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1. The appellant pleaded guilty to possession of a forged travel document, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap. 115, and to remaining in Hong Kong after having landed unlawfully, without the authority of the Director of Immigration, contrary to section 38(1)(b) of the same ordinance. He was sentenced to 18 months on the 1st charge and to 6 months on the 2nd charge, 3 months of which were ordered to run concurrently with the sentence on the 1st charge.

2. Magistrates have had to deal with many such cases in recent years. The most recent sentencing guideline is to be found in R. V. Yu Wing Wut[1], in which the Court of Appeal held that appropriate sentences in the circumstances of that case - the facts of which were almost identical to those in the present appeal - were 18 months and 6 months respectively.

3. Mr Forrest, for the appellant, relies on paragraph 3 of the judgment of Cons J.A. in which he said:-

“On the other hand a useful starting point is to be found in Criminal Appeal No. 934 of 1981 in which this Court, on the 4th January 1982, approved four sentences of imprisonment, each of fifteen months, for the possession of forged identity cards.”

4. Mr Forrest submits that things have changed since 1984 and that illegal immigrants are now less of a problem. He says that the normal sentence for possession of forged identity cards is in the region of 9 to 12 months. In these circumstances, he says, the sentence for passport forgery offences should likewise be lowered to 12 months or thereabout.

5. There is no evidence before me that the illegal immigrant situation has improved so dramatically, .nor has counsel been able to cite any recent decisions in forged identity card cases. I do not think the time is ripe to depart from the sentences approved by the Court of Appeal in Yu Wing Wut.

6. Counsel for the Crown has drawn the court's attention to the form of the sentence and queries whether a magistrate has power to make such an order. Section 68 of the Criminal Procedure Ordinance, Cap. 221, provides :-

"Where the court sentences any person to undergo a term of imprisonment for an offence, and such person is already undergoing, or has been at the same session of the: court sentenced to undergo, imprisonment for another offence, it shall be lawful for the court to direct that such imprisonment shall commence at any time during or at the expiration of the term of imprisonment which such person is then undergoing or has been so previously sentenced to undergo, as aforesaid."

"Court" is defined in section 2 of that Ordinance as the High Court. There is no equivalent provision in the Magistrates Ordinance, Cap. 227. I am satisfied that counsel is right; sentences in the Magistrates Court must be either consecutive or concurrent. I order that the sentence on the 2nd charge be reduced to 3 months and that it run consecutively to the sentence on the 1st charge. To that extent the appeal is allowed, but the total sentence remains the same, that is to say 21 months.

Mr E.C. Harris, Senior Crown Counsel, for Respondent

Mr R. Forrest, instructed by M/S Alick Au & Massie, for Appellant

[1]  Cr. App. No. 346 of 1984