Sae Tang Somsak Alias Chan Chi Kit v. The Queen

CACC000964/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 964 OF 1980

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Coram: Bewley, J.

Date of Judgment: 29th December, 1980

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JUDGMENT

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1. The appellant pleaded guilty to 4 charges of using an unlawfully altered travel document for the purpose of Part II of the Immigration Ordinance. He was sentenced to a total of 12 months imprisonment, against which he now appeals.

2. The appellant is a construction site foreman in Thailand. The admitted facts show that he bought the passport in June, 1979, for 3,000 Baht. He travelled on it to Hong Kong on the 25th July this year and left on the 29th July (A & B charges). He came again to Hong Kong on the 20th October, but was stopped as he was leaving two days later, when it was noticed that the original photograph had been replaced (C & D charges).

3. In a cautioned statement the appellant said he had bought the passport because he wanted to travel. He was unable to obtain a lawful passport because he had not yet done his military service.

4. Counsel for the appellant submits that the learned magistrate was wrong in ordering the sentences on charges C & D to run consecutively to those on charges A & B. I do not think the magistrate can be criticized for doing this. There were two distinct trips to Hong Kong and it was therefore a matter of discretion.

5. It is also submitted that the total sentence is excessive. Counsel for the Crown informs the Court that the average sentence in the Magistrates Court for a single transgression under this section is 8 months imprisonment and that there have been no appeals.

6. The learned magistrate says in his statement of findings that he does not accept the applicant's reason for buying the passport. It apparently contains a French visa, a German entry permit and entries relating to short stays in Pakistan and Singapore. The magistrate notes that "the appellant offered no satisfactory explanation as to how he could afford to undertake 2 such journeys within a matter of 3 months." He inferred that the passport was being used for an illegal purpose.

7. The record does not indicate that the appellant was ever asked for an explanation of his movements. He asked the Court for leniency and to order his return to Thailand. I must assume, therefore, that the Court made no enquiry.

8. I do not propose to pronounce on whether such an adverse inference was one that the magistrate was entitled to draw, as I am satisfied that he should not have allowed it to affect his decision, without giving the appellant an opportunity to deal with the matter. There may well have been an innocent explanation. This principle has been laid down by the English Court of Appeal in R. v. Lester.⁽¹⁾ It permits fair play to both prosecution and defence and I think it should be followed in Hong Kong. See R. v. Foo,⁽²⁾ R. v. Hearne⁽³⁾ and R. v. Denniston.⁽⁴⁾ The magistrate accordingly, in emphasizing the appellant's illegality of purpose, acted on a wrong principle.

9. It is, nevertheless, a serious matter to use a forged passport and the legislature has provided a maximum penalty of 2 years imprisonment, plus a fine of $5,000. I think the proper total sentence in this case is one of 6 months imprisonment. The appeal is allowed and the consecutive sentences of 6 months imposed in the court below are ordered to run concurrently.

Representation:

Mr. Peter Lee (Vicent Lo & Co.) for appellant

Mr. R.S. Maxwell, C.C., for respondent

(1) (1976) C.L.R. B89.

(2) (1976) C.L.R. 456.

(3) (1976) C.L.R. 753.

(4) (1977) C.L.R. 46.