Ding, R v [2010] EWCA Crim 1979

Case No 201002629 A1[2010] EWCA Crim 1979
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 16th July 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE UNDERHILL
MR JUSTICE HICKINBOTTOM
Between
R E G I N ACrownv
Between
HENG PIT DING
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Leake appeared for Appellant
J U D G M E N T

LORD JUSTICE TOULSON:

[1]The appellant appeals by leave of the Single Judge against a sentence of 12 months' imprisonment, less days spent on remand, passed on him at Luton Crown Court by HHJ Foster on 7th May 2010 for an offence of securing or seeking to secure the avoidance of an enforcement action contrary to section 24A(1)(b) of the Immigration Act 1971, to which the appellant pleaded guilty at the first opportunity.[2]The appellant is a Malaysian national. He entered the United Kingdom lawfully in 2007 but did not leave when his visa expired and so became an overstayer.[3]On 27th January 2010, he was stopped at a service station on the M1 motorway in Bedfordshire by an officer of the UK Border Agency and a police officer, who asked him for evidence of his identity. He produced a photocard in the name of Che Man Tan, which stated that he was Chinese and that he had been born on 18th March 1978. The document purported to have been issued by an entity describing itself as the International Automobile Association and purported to be a translation of a Chinese driving licence. The appellant's fingerprints were scanned electronically and his true identity was soon established. When this was put to him, he admitted it and said that he paid £100 for the photocard.[4]He originally came before the Crown Court on an indictment which charged him with possession of a false identity document with intent contrary to section 25(1)(a) of the Identity Cards Act 2006. After legal argument, the judge ruled that the document did not fall within the definition of an identity document because it did not itself purport to be a licence to drive issued by an authority falling within the scope of the Act but to be a translation of such a document, albeit authenticated by an ostensibly genuine organisation, which in fact did not exist. The prosecution met that problem by including the count under section 24A(1)(b) of the Immigration Act 2001, to which the appellant pleaded guilty.[5]The appellant had one previous conviction for failing to provide a specimen for analysis, for which he had been disqualified from driving. In passing sentence, the judge referred to the guidance given by this court in the case of R v Ali [2001] EWCA Crim 2874; [2002] 2 Cr.Ap.R(S) 32. In that case, the defendant pleaded guilty to seeking to obtain leave to enter the UK by deception contrary to section 24A(1)(a) of the Act. He sought leave to enter on asylum grounds claiming to be from Afghanistan. In truth he was a citizen of Pakistan. He was sentenced on a plea of guilty to 18 months' imprisonment. That case did not involve the use of false documents but the court considered that the passport cases provided useful guidance.[6]The court said in its judgment:
"In the present case, we are satisfied that the sentencing judge was correct in saying that the message has to go out that offences of this kind will be treated by the court very seriously. It is a prevalent type of offence, as is only too obvious to anyone aware of what is going on at the moment. As with passport offences, and as Keene J said in the case of Walker [1999] 1 Cr.App.R(S) 42, there is a potential to undermine the system of immigration control. As Rose LJ said in Daljit Singh [1999] 1 Cr.App.R(S) 490, although a plea of guilty will always attract an appropriate discount, previous good character and personal circumstances of mitigation are of very limited value in cases of this kind which should generally be sentenced on a deterrent basis."
[7]The court went on to observe that, since the maximum penalty for an offence under section 24A of the 1971 Act is two years' imprisonment, it was necessary to leave "a ceiling for the most serious cases". For that reason, it reduced the sentence from 18 to 12 months' imprisonment which would have been equivalent to 18 months' imprisonment after conviction.[8]In his written argument in support of the appeal, Mr Leake sought to draw a distinction between the appropriate sentencing tariff for offences under section 24A(1)(a) and offences under 24A(1)(b) of the Act. The section provides:
"A person who is not a British citizen is guilty of an offence if, by means which include deception by him- (a) he obtains or seeks to obtain leave to enter or remain in the United Kingdom: or (b) he secures or seeks to secure the avoidance, postponement or revocation of enforcement action."
In his advice, he put the argument in this way:
"As a general rule, it is submitted that offences under S.24A(1)(a) are more serious than those under section S24A(1)(b). Culpability will be greatest, it is submitted, where false representations are made during formal immigration procedures, such as asylum applications (where applicants are interviewed by immigration officers and statements of evidence are given). Deceptions in such cases are likely to be extensive and persistent and may involve considerable premeditation and planning. Furthermore, the harm or potential harm arising in such cases is that the offender unlawfully obtains a right to enter or remain in the United Kingdom potentially for an indefinite period. Cases in this bracket are exemplified by R v Ali and R v Kishientine [2005] 2 Cr.App.R(S) 28... The potential harm caused by the applicant's deception was the avoidance of being detected as an overstayer, thus enabling him to continue to remain in the United Kingdom on an unlawful basis for as long as he continue to remain undetected. It is respectfully submitted that this involves a lesser degree of harm than fraudulently obtaining a right to enter or remain."
[9]We do not accept that general proposition. Insofar as he seeks to draw a distinction between the use of deception to obtain entry and the use of deception to remain in the UK, the statute itself does not draw such a distinction. Section 24A(1)(a) applies equally to a person who fraudulently seeks leave to enter or who fraudulently seeks leave to remain. In the case of Walker, to which this court referred in Ali, the defendant entered lawfully on a limited visa and then applied for a passport in a false name. We cannot see that there is a general difference of culpability between seeking to enter by deception and seeking to remain by deception, nor can we see any general distinction in the resulting mischief. We are equally unpersuaded by Mr Leake's attempt to draw a general difference of culpability between(1) a defendant who uses deception to obtain permission to remain, eg by producing a false identification document, and thus commits an offence under paragraph (a), and(2) a defendant who uses deception to prevent the authorities from discovering that he is unlawfully in this country, eg by producing a similar false document, and so commits an offence under paragraph (b). The mischief in both cases is that the conduct undermines the system of border control.[10]In giving leave to appeal, the Single Judge suggested that there was more recent authority in this area than Ali and Kishientine, the two cases to which Mr Leake had referred in his advice on appeal. Mr Leake, in the light of those comments, has helpfully provided the court with four more recent authorities. They are, in date order, R (K) v the Crown Court at Croydon [2005] 2 Cr.App.R(S) 96, R v Buriticia-Castrillon and Omotade [2008] EWCA Crim 1972. R v Ovieriakhi [2009] EWCA Crim 452; [2009] 2 Cr.App.R(S) 91 and R v Shawnm Mohammed [2009] EWCA Crim 2176.[11]The cases illustrate that deception offences involving breach of border control and/or the use or possession of fake documentation may take a variety of forms. Deception for the purpose of avoiding immigration control may or may not involve the use of fake documents. The offence may, for example, take the form of lying to an official to obtain a visa or making a false asylum claim without involving any use of false identity material. Deception involving the use of a false identity document by an illegal or would be illegal immigrant or an overstayer may be for the purpose of breaching immigration control, or its direct purpose may be different, such as to obtain employment by which to live. In Omotade, the offender produced a false passport to satisfy a bank about her identity and so to obtain the payment of a cheque of which she was the genuine holder and payee. Ovieriakhi was a false document case in which the appellant pleaded guilty to a charge under section 25(1)(a) of the Identity Cards Act 2006. She used a false passport to obtain employment. The court, presided over by the Lord Chief Justice, reviewed a number of cases in this area and held that, where a false passport is held or used by a person for the purpose of defeating immigration control, the appropriate sentence, even on a guilty plea by a person of good character, would ordinarily be in the range of 12 to 18 months in accordance with the guidance previously given by this court in R v Kolawole [2005] 2 Cr.App.R(S) 14. However, the court drew a distinction between that type of case and one where an offender used the passport not for the direct purpose of avoiding or defeating border control but to obtain work or open a bank account. In such a case, the sentence could justifiably be less, especially if the offender was of good character and doing no more than seeking employment to support the offender or the offender's family. Ovieriakhi fell into the latter category and the court reduced her sentence from 12 months to six months' imprisonment.[12]In cases which fall into the Ali type of situation, this court confirmed in Shawnm Mohammed that Ali continued to set out the relevant principles. In the present case, the appellant did use a false document in an attempt to evade border control. The offence involved the premeditated use of a fake document which the appellant must have had a dishonest motive in obtaining and which was meant to suggest that he was a different person and somebody in possession of a lawfully issued driving licence. It was not suggested at the court below that his purpose in having that document was analogous to the purpose of the defendant in Ovieriakhi, ie that it was unrelated to border control. Accordingly, the appropriate sentencing guidance was as given in Ali and reaffirmed as appropriate in that type of case in Ovieriakhi and in Shawnm Mohammed.[13]Mr Leake in his oral submissions advanced the additional point that offences under section 25 of the False Identity Act are generically more serious than offences under section 24A(1) of the 1971 Act because they are aimed at protecting the integrity of a particular type of document. We do not accept that argument as a generalisation. The offences are aimed at different mischiefs, although the two may overlap.[14]It is to true that the potential sentence under section 25 of the Identity Card Act, where there is an intention to make dishonest use of a document, is far higher than the maximum sentence under section 24A(1)(a) of the 1971 Act. It is ten years imprisonment by contrast with two years' imprisonment, but there is an understandable reason for that. The sentencing range under section 25 of the Identity Cards Act has to cater for the worst possible case, which may include the manufacture and distribution of false documents on a commercial basis, no doubt for potentially significant gain. That may cause far greater damage to the integrity of the border control system than could be caused by a single individual attempting to deceive the immigration authorities and thereby committing an offence whether under that Act or under section 24A(1) of the 1971 Act. In any event, as already noted, the guidance given by this court in Ali and followed in Shawnm Mohammed related to an offence under the Immigration Act but the court drew on passport offences as a parallel.[15]In conclusion, we are not persuaded that the sentence imposed by the judge in this case was wrong in principle or manifestly excessive. Notwithstanding the plea of guilty and the appellant's relatively good character, he can have no complaint about the sentence imposed which was within the guidance range given by this court. For those reasons, this appeal is dismissed.