HKSAR v. Yim Kim Ping and Others

CACC 67/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 67 OF 2009

(ON APPEAL FROM DCCC NO. 936 OF 2008)

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BETWEEN

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Before:  Hon Tang VP, Hartmann JA and Saw J in Court

Dateof Hearing: 18 August 2009

Date of Judgment: 18 August 2009

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JUDGMENT

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Hon Tang VP:

1.All three applicants were arrested near the boarding gate of Cathay Pacific for flight CX271 bound for Amsterdam.  Two Japanese passports and two Malaysian passports were found in the 1^st applicant’s handbag.  All four passports were later examined and found to be forged.  The 2^nd and 3^rd applicants had earlier checked in at the Cathay counter for flight CX271 with onward passage to Ecuador.  Of the forged passports, two of them bore the photographs of the 2^nd applicant, namely, Japanese passport MS08197774 in the name of Keiko Adachi and Malaysian Passport K18009836 in the name of Peter Kaper.

2.The other set bore the photographs of the 3^rd applicant, namely, Japanese passport MS0597669 in the name of Takanori Masaki and Malaysian Passport H18240145 in the name of Hans Everson.

3.The summary of facts which were admitted to by the applicants states:

“5.  All 3 Defendants were interviewed under caution. D1 admitted inter alia:

a)    That he was given the four forged passports by a 'Biu Suk' (Paternal Uncle) in Shenzhen on 25.8.2008. He met D2 and D3 on this same occasion. Biu Suk would pay him $5,000 plus expenses to carry these passports to hand to D2 and D3 upon arrival in Amsterdam.

b)   He returned to Hong Kong alone and met up with D2 & D3 together with Biu Suk in a restaurant in Hong Kong the next day where he was given 500 Euros by Biu Suk.

c)    He took D2 & D3 to the Kowloon Station check-in and collect their boarding passes.

d)   Upon arrival in Amsterdam, the passports would be given to D2 and D3 where they would use the Malaysian Passports to board flights for Switzerland and use the Japanese Passports to enter Switzerland.

6.   D2 admitted under caution that he was referred to the ‘boss’ by a friend in Switzerland;

b)   He asked the boss to arrange for him to go to work in Switzerland and he was asked to supply his photo by e-mail. The fee for getting to Switzerland to work was to be RMB175,000.

c)    His further admissions tallies with what D1 had earlier admitted. He stated that the boss told him that he would not be able to enter Switzerland using his own PRC passport and so he asked the boss to do it for him.

7.   D3 admitted a somewhat similar story under caution. He said he met the ‘boss’ in Fujian in mid-July 2008 and the boss asked if he wanted to work in Europe. He said he wanted to go to Switzerland and the boss said it could be arranged for RMB170,000.

b)   He accepted the boss's offer and was asked to e-mail his photo.

c)    In mid-August he was asked to travel from Fujian to Shenzhen and he was shown the Japanese and Malaysian passports by the boss.

d)   His further admissions tallies that of the other two Defendants.”

4.The 1^st and 2^nd applicants were charged with one count of conspiracy to possess false instruments, contrary to sections 75(1) and 159A of the Crimes Ordinance, Cap. 200 in relation to the 2^nd applicant’s set of passports.

5.The 1^st applicant was charged with the 3^rd applicant for a conspiracy in relation to the second set of passports. 

6.All applicants had a clear record and pleaded guilty to their respective offences.  The 1^st applicant was sentenced by Deputy District Judge W.C.  Li to 3 years’ imprisonment for each of the two offences to run concurrently.  The learned judge described the offence as not a simple operation, it involved using different passports, entering different countries; it was well-planned, well-organized and carried out.  He had adopted a starting point of 4½ years, and gave the 1^st applicant a one-third discount for his plea.

7.As for the 2^nd and 3^rd applicants, the judge adopted a starting point of 30 months’ imprisonment and after giving them a one-third discount, they were sentenced each to 20 months’ imprisonment. 

8.In sentencing the 1^st applicant, the learned judge said and I quote:

“3.  I notice that there is an upward trend in sentence. In the case of HKSAR v Ma Yuen Chi CACC537/2005 (unreported, dated 14 June 2006), 5 years was upheld on appeal. This is understandable because of the prevalence of such offences and the need for deterrence. Not just the comity between nations, but also that today's world is not a peaceful one. It is not just people going into other countries for work that they were smuggled. There is a growing concern that people with other ulterior motives were being smuggled around. We are not concerned with those cases. D2 and D3 in this case are going to Europe for economic reasons, going to work in the quest for more pay and to provide a better livelihood for their families in China.”

9.In relation to the 2^nd and 3^rd applicants, the learned judge noted that they were poor peasants, that they had agreed to pay something like RMB170,000 in order to go abroad to work, and that they would probably have to work at least two years in a sweatshop to pay off the same.  He described them as the end-users but said that even in relation to them, a deterrent sentence was necessary. 

10.Mr James McGowan, appearing for all three applicants, submitted first in relation to the 1^st applicant that the starting point of 4½ years is too high.  He said in mitigation that the 1^st applicant was a man in his 50s with a clear record, divorced with a 19-year-old daughter, he had health problems particularly hepatitis, and had accumulated debts as a result of his health problems.  He was given the opportunity to pay off his debts by carrying and delivering the forged passports.  He had never received the promised $5,000 because he was to be paid on return to the mainland. 

11.In HKSAR v Ma Yuen-chi, CACC 537/2005, unreported, dated 14 June 2006, Yeung JA, giving the judgment of the court, said:

“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.’”

12.In Ma Yuen Chi, the starting point was 5 years’ imprisonment.  The defendant in that case was travelling alone when he was found with four false Japanese passports and seven false British National (Overseas) passports.  Mr McGowan relied on the fact that in Ma Yuen Chi the court was concerned with eleven forged passports, and here only four.  That may be so, but quantity, though relevant and sometimes important, is not the only determining factor.  In this case, as Ms Pang, for the respondent, has submitted:

“13.   Unlike the case of Ma Yuen Chi, it is submitted that A1's role in the present case was a more active one. A1 was not only a courier of the passports, he would actually travel together with A2 and A3 and the plan was that he would keep the forged passports in his own custody until their arrival in Amsterdam. No doubt, with such an arrangement, it would be more difficult for the false passports to be discovered for even if A2 and A3 somehow got nervous about the plan and aroused suspicion, such passports would not be found on their persons when they were stopped and searched in Hong Kong.”

13.In any event, here the learned judge has adopted a lower starting point of 4½ years.  Another case referred to by Mr McGowan is the case of HKSAR v Cheng Kwong-chung and Ors, CACC 536/2001, unreported, dated 13 August 2002.  There, the Court of Appeal upheld a sentence of 3 years’ imprisonment after trial imposed on each of four charges of conspiracy to possess a false instrument, with 18 months of sentences for counts 3 and 4 to run consecutively to the sentences for counts 1 and 2 resulting in a total sentence of 4½ years’ imprisonment.

14.Mr McGowan submitted that the conspiracy in Cheng Kwong-chung was more widespread and serious, for example, there were seven defendants and at least two other men.  There was a much greater degree of planning than in the present case, it involved the provision of false documents to leave Hong Kong - rather than the genuine documents here.

15.But there are no guidelines for offences of this type.  I accept that on the facts in Cheng Kwong-chung, 4½ years’ starting point was regarded as appropriate.  There the object of the conspiracies was to arrange for two Mainland men to be smuggled into the United States of America.  Yet, in the later decision, Ma Yuen-chi, this court upheld a sentence of 5 years.  But the ultimate question for us is whether the sentence in this case can be regarded as manifestly excessive.  For myself, I do not regard this sentence as manifestly excessive.

16.It is also said that a number of letters had been placed before the judge in mitigation, that the 1^st applicant was a good son, he was remorseful, and he had offered to be a prosecution witness against the 2^nd and 3^rd applicants. 

17.Mr McGowan also complained that the learned judge had made no allowance for the fact that the 1^st applicant was willing to testify against the other defendants.  He relied on the judgment of Liu JA in HKSAR v Pak Wan-lung, CACC 573/1998, unreported, dated 20 April 1999.  But as Stuart-Moore VP said in HKSAR v XU Yong-biao, CACC 404/2000, unreported, dated 15 June 2001:

“13.   … Clearly, (Liu JA’s judgment) was in error as a vast weight of authority demonstrates.  Credit should, of course, only be given by a court when an offer to assist has produced some tangible result.  An offer to assist cannot, by itself, justify a discount. …”

In HKSAR v Chan Yip Chi, CACC 153/2001, unreported, dated 29 November 2001, this court went on to explain why that is so at para. 17.

18.In my opinion the sentence of 3 years for the 1^st applicant is not manifestly excessive.

19.Lastly, I refer to the 2^nd and 3^rd applicants, the learned judge was fully aware of their pitiable situation.  Mr McGowan described them as “victims”.  I believe the learned judge was correct in describing them as “end-users”.  I do not regard the fact that the 2^nd and 3^rd applicants did not use the forged passports in Hong Kong as a mitigating factor.  I agree with Ms Pang that there is a mutual responsibility shared by all nations to punish and deter those who tried to cross international borders with forged travel documents.  Nor do I regard the fact that they did not intend to use the passports to further other criminal enterprise as a mitigating factor.  It might be an aggravating factor if the passports were used to further a criminal enterprise.  See R v Wang Ju-wen, [1989] 2 HKLR 26 at 29.

20.Here the learned judge adopted a starting point of 30 months, and as the learned judge said:

“… this was not a simple operation, it involved using different passports, entering different countries; it was well-planned, well-organized and carried out.”

21.I cannot say that the sentence of 20 months as manifestly excessive.

22.For the above reasons, I would dismiss the application for leave to appeal against sentence in relation to all three applicants.

Hon Hartmann JA:

23.I agree and have nothing to add.

Hon Saw J:

24.I agree and have nothing to add.

Ms. Anthea Pang, SADPP, of the Department of Justice, for the Respondent.

Mr. James H M McGowan, instructed by Messrs. Lo, Wong & Tsui, assigned by the Director of Legal Aid, for the Applicants.