Yung v State [1991] FJLawRp 2; [1991] 37 FLR 5 (4 April 1991)

[1991] 37 FLR 5

HIGH COURT OF FIJI

ANTOLO YUNG

-v-

STATE

[HIGH COURT, 1991 (Jesuratnam J), 4 April]

Appellate Jurisdiction

Sentence - fraudulent marriage ceremony - false statement to procure a passport - Penal Code (Cap 17) Sections 186 & 312.

On appeal against a sentence of 6 months immediate imprisonment for an offence relating to marriage the High Court while dismissing the appeal emphasised the need to deter attempts to circumvent Fiji's immigration laws.

No cases were cited.

Appeal against sentence imposed in the Magistrates' Court.

M. Raza for the Appellant
S. Hettige for the Respondent

Jesuratnam J:

In this case the appellant was charged in the Magistrates' Court of Suva on two counts with having (1) made a false statement that his name was Yeung Pak Hi and that he was born in Johanum, Ba knowing that the same was untrue for the purpose of procuring a passport for himself contrary to section 312 of the Penal Code and (2) gone through the ceremony of marriage with one Hui Chui Nga with fraudulent intention knowing that he was not thereby lawfully married to the said Hui Chui Nga contrary to section 186 of the Penal Code.

He pleaded guilty to both counts and the learned magistrate convicted him and sentenced him to 6 months' imprisonment on each count - the sentences to run concurrently.

The appellant has appealed both against the conviction and sentence and has also moved this court for bail pending the hearing of the appeal. I therefore directed that both the appeal and the application for bail be listed together for hearing as the registry was able to have the record prepared within 2 days of the lodging of the application for bail.

One of the grounds of appeal is that the plea tendered by the appellant was equivocal. It is on record that the learned magistrate had realised the appellant's linguistic difficulty on the first day itself and had adjourned the case for another date and directed that a Chinese interpreter be present before he could take a plea. This was done and the appellant's plea was taken only after the charges were made clear to him through a Chinese interpreter.

The appellant has invoked section 10 of the Penal Code to his aid. The facts as revealed seem to justify the position taken up by learned State Counsel that, if at all, it is Section 7 and not Section 10 that is relevant to this case. It appears from the accepted facts outlined by the prosecutor in the Magistrates' Court that the appellant, who was the holder of a Bolivian passport, had paid 35,000 Hong Kong dollars in Hong Kong for the purpose of obtaining a residence permit to enter Fiji. A person who had entered at such high stakes can be presumed to have known what he was about after he entered the country.

He had paid $1250 in order to obtain a Fiji passport. He had gone through a false marriage ceremony with a Fijian national. Why was he resorting to all these subterfuges if his intentions were bona fide? It seems to me that the proved circumstances and admitted facts effectively negative even a plea of ignorance of fact.

I therefore dismiss the appellant's appeal against conviction.

Even on the question of sentence the gravity of the offences is such that it cannot be regarded that an immediate custodial sentence was not warranted or that 6 months is too long a period.

Mr. Raza, who appeared for the appellant, argued that this type of offence is not widely prevalent and that therefore an immediate custodial sentence was not called for. It may be that the two individual offences as such are not widely prevalent. But the acts penalised by the two sections of the Penal Code are helpful - if not necessary - preludes to the commission of offences against the immigration laws of Fiji which are at the moment widely prevalent in this country.

I have very anxiously considered the question as to whether it is really necessary to keep a foreigner like the appellant in prison in a case like this. After a great deal of deliberation I have come to the conclusion that it is.

I may say that quite apart from the appellant's complicity in the instant case it is the needs and requirements of affluent foreigners like the appellant which provide the motive and inspiration for local racketeers to circumvent and defeat the immigration laws of this country. I therefore do not think that the learned Magistrate can be faulted for having considered himself to be under a duty to pass a sentence that would deter like-minded others.

It is my view that this is a case that called for a sharp short prison term and the sentence in the instant case cannot be regarded as harsh or excessive.

I therefore dismiss the appellant's appeal against sentence as well.

(Appeal dismissed)