R. v. EZEH Josephine Nwabuaku alias ORJI Obiageli

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 714 OF 1995

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J U D G M E N T

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1. The appellant was convicted on 29th May, 1995, by Mr McNair at North Kowloon Magistrates' Court on one charge of possession of a forged travel document and sentenced to 20 months' imprisonment. That sentence was ordered to run consecutively to a term of 13 months' imprisonment imposed on 5th December, 1994, in another case in which the appellant was convicted of trafficking in dangerous drugs. She now appeals only against the sentence of 20 months.

2. The appellant was stopped at Lowu Terminal on 12th September, 1994 and found to be in possession of a Nigerian passport, in which the photograph had been substituted, and also a quantity of cannabis.

3. On 16th July, 1993, the appellant had been convicted of breaching a condition of her stay. She had then travelled to Peking on a valid Nigerian passport. Her defence at trial was that the passport seized was not a forgery but had been tampered with by an unknown person after her arrest.

4. The magistrate took two years as his starting point for sentence. He noted correctly that the appellant had used the forged passport in the course of committing a serious crime, which was an aggravating factor. See dictum of Fuad V-P in R. v. Wang Ju-wen [1989]2 HKLR 26. He also recognised that the sentence should be consecutive to the trafficking sentence.

5. Mr Halley, for the appellant, submits that this case falls into the fourth category of situation cited in R. v. Bagwant Singh-Padda M.A.1447 of 1988 and that accordingly the sentence should have been in the region of nine months. He also complains that the magistrate, although stating that he was taking into consideration the totality principle, had in fact "failed to stand back and look at the sentences overall and come to a proper sentence neither too heavy nor too light". See R. v. Wong Kwai Pui C.A.522 of 1989 per Silke V-P.

6. The sentence had to reflect the use to which the forged passport was put - to smuggle drugs - but in my judgment, having regard to the 13 months' term, the overall sentence is too heavy.

7. The appeal is allowed and the sentence reduced to 15 months.