HKSAR v. SINGH PARKAS

HCMA 1237/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1237 OF 1999

(ON APPEAL FROM KTC 3156/1999)

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J U D G M E N T

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1. The Appellant in this case appeals against sentences of 15 months and 6 months imposed in respect of two offences; the first the Using of a Forged Travel Document for the purposes of Part II of the Immigration Ordinance, contrary to Section 42(2)(b) of the Immigration Ordinance Cap. 115 and the second, associated, offence of Making a False Representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to Section 42(1)(a) of Immigration Ordinance Cap. 115.

2. The facts of the case as admitted before the Magistrate show that this Appellant on 24 November 1999 was off-loaded in Hong Kong by airline staff as he was boarding a flight to Canada, because it was suspected that his Indian passport had the photo substituted. This was confirmed upon later examination of the passport.

3. The Appellant admitted that he had arranged for the passport through an agent intending to go to work in Canada. On the basis of the passport, he managed to arrive in Hong Kong, was allowed entry and, later made a side trip to Mainland China. He returned to Hong Kong on 20 November. On 24 November, at the Airport he presented the passport again to Immigration and at that point was intercepted.

4. In passing sentence, the Magistrate took into account the fact that the Appellant had a clear record in Hong Kong and he reminded himself of various authorities relating to similar cases.

5. It was submitted for Appellant that the sentences of 15 months' imprisonment are manifestly excessive and wrong because the Appellant was charged with just one offence of using a forged travel document and it is suggested the Magistrate imposed sentence on the basis of repeated use of a travel document. Second it is submitted the Magistrate failed to take into account that according to the admitted facts, it was not continuous use of the forged travel document, nor was there any suggestion the travel document would be used again in Hong Kong or elsewhere. Thus it was the isolated use of a travel document, by a person unconnected with Hong Kong or China, en route to another country.

6. It was suggested that although the Magistrate had not indicated the starting point and discount for a guilty plea, the overall 23 months as a starting point was excessive in all the circumstances of the case.

7. Having considered the facts of this case and having considered the categories of offences set out in the case of in R v Bhagwant Singh-Padda Mag Crim App No 1447 of 1988, I cannot say this sentence is so excessive that this court should interfere with it.

8. Counsel submits this comes within the 4th category, the isolated use of forged passport by person unconnected in Hong Kong or China.

9. Bewley J said the 4th category, into which this Appellant falls, seems to attract a lesser sentence than the other 3 categories. He went on to say, however, "It is nonetheless a serious offence meriting a prison sentence which will indicate that the Hong Kong Courts are alive to the danger of tolerating unauthorised use of travel documents in the present era of world wide terrorism." Those remarks were made in 1988 and the difficulties and problems of unlawful attempts at immigration and the increasing use of forged passports are much greater now in 2000. It will probably not be very long before the categories can be increased further.

10. Taking all matters into account and looking at current authorities, I cannot say that this is an excessive sentence.

11. This Appellant was prepared to come through Hong Kong using a forged passport with the aim of going to work in another country, Canada. Comity of Nations is all-important and is a further reason to leave the sentence as it is.