THE QUEEN v. RAQUEL M. GARCIA

Magistracy Appeal No. 1317 of 1989

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HEADNOTE

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Appeal against sentence - possession by transit passenger of an unlawfully obtained passport and a forged one - concurrent sentences of one year's imprisonment reduced to concurrent sentences of 6 months' imprisonment - observations on the need for sufficient regard to the circumstances of each case to avoid confusing offences which are not prevalent with ones which are.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1317 OF 1989

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JUDGMENT

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1. This is an appeal against sentence. On September 13, last year the appellant, a Filipina in her early twenties, appeared before Mr M.D. Hill in the Magistrate's Court in Western on two charges.brought under section 42 (2) (c) (i) of the Immigration Ordinance, Cap. 115, which makes it an offence to possess any forged, false or unlawfully obtained or altered travel document, entry permit, re-entry permit, certificate of identity, document of identity or Vietnamese refugee card. The offence is punishable on indictment by a fine of $50,000 and imprisonment for 14 years. It is punishable on summary conviction by a fine of $20,000 and imprisonment for 2 years.

2. The first charge was of possession of an unlawfully obtained travel document. The second charge was of possession of a forged travel document. The appellant pleaded guilty. The learned Magistrate sentenced her to one year's imprisonment by way of concurrent terms of that duration on each charge.

3. An appeal against sentence having been brought, the learned Magistrate prepared a written statement of  his reasons for the same. This statement reads as follows :-

"This is another case of a Philippines citizen being apprehended here with a forged and an unlawfully obtained travel document.

This offence is prevalent particularly with travellers from the Philippines. The appellant was going to Japan to work and could not use her own true identity as she had once been sent back to the Philippines by the Japanese authorities.

The courts here impose immediate custodial sentences for this offence. The terms range between 9 to 18 months' imprisonment. I sentenced the appellant to 12 months' imprisonment in respect of each passport terms concurrent.  I have had a number of similar cases and this is the sentence I impose under these circumstances."

4. Two perfected grounds of appeal against sentence have been filed. The first ground reads :-

 

"The learned Magistrate failed to bear in mind the exceptional feature of the case that at no time was it the applicant's intention or purpose to use the passports ('the subject-matter of the two charges) to enter or exit from Hong Kong. Accordingly it is not right to treat the applicant as 'another case of a Phillipines citizen being apprehended herewith a forged and an unlawfully obtained travel document'."

5. The second ground reads :-

"In all the circumstances the sentences were manifestly excessive and/or wrong in principle."

6. Shortly stated, the background to the charges run thus : The unlawfully obtained travel document was a passport issued by the Government of the Philippines to somebody else. The appellant had used it to depart from Manila on September 8, 1989, to fly to Kai Tak Airport in order to catch a connecting flight to Tokyo on the same day. The forged travel document was a forged United States passport which she intended to use to enter Japan. When she was intercepted at the transfer desk at Kai Tak by immigration officers and asked for proof of her identity, the appellant produced the forged passport. The unlawfully obtained passport was found in her baggage upon a search of the same. It is correct to say, therefore, that the appellant was in Hong Kong only in transit.

7. Cases involving false travel documents seem to come before the Hong Kong courts quite frequently. A number of these cases have gone on appeal either to this Court on appeal from the Magistrate's Court or to the Court of Appeal on appeal from the District Court. I do not propose to analyse the various cases drawn to my attention, although I have found them useful. I have, of course, noted the principles laid down and guidance given in those cases; and I will of course apply them where relevant.

8. At one stage, Mr Macrae, who appears for the appellant, suggested - or came close to suggesting - that the better course would have been for the Hong Kong authorities to have allowed the appellant to travel on to Japan, simply notifying the Japanese authorities of the situation. At a later stage, Mr Macrae abandoned that particular line. In abandoning it he was, in my judgment, right. It seems to me that it would have been utterly wrong for the authorities here to have sent on her way somebody who was in possession of no less than two suspect travel documents. Quite apart from anything else, at that stage they had no basis to be confident that she really was whom she admitted, or claimed, to be. Furthermore, there is the concept of - as it is put - the comity of nations. Various things have been said in the cases in regard to that concept. It has been said that we owe a responsibility to countries whose travel documents are unlawfully obtained or forged. It has also been said that we owe a duty to countries which persons seek to enter by means of travel documents of that sort. Those are merely examples. I prefer to put it this way : There is a mutual responsibility shared by all nations in regard to the proper identification and legitimate control of persons moving across international boundaries. There are very good reasons - even in the best of times - why this is important. And nowadays - with the rapid movement of ordinary criminals and worst throughout the world - these things have become even more important. That is why these matters always have to be regarded seriously and certainly investigated thoroughly. That does not mean to say that severe punishment need be visited upon the offender in every case. These offences are committed in a variety of circumstances; and the circumstances of each case must be borne in mind. The court must never lose sight of precisely what it is dealing with in each case.

9. Now, I say at once that it seems to me that the appellant has been dealt with too severely. In R. v. Gafni Zvi Criminal Appeal No. 229 of 1988, August 19, 1988, (unreported) the Court of Appeal had to deal with, among other offences, two which are described in this fashion at p. 2 of the transcript of the judgment in that case :-

"The first charge concerned a false Singapore passport in the Applicant's name found in his residence in Discovery Bay. The sixth charge concerned five false Philippine passports found in his possession at his business office."

10. At the bottom of that page, one sees that the Court of Appeal regarded it as material to point this out :-

 

"There is no evidence that any of the passports had been used for entry to or exit from Hong Kong. The Singapore passport was used by the Applicant for entry to China as were the false Philippine passports by their purported holders."

11. The appllant before me, like the applicant in that case, did not use any of the false passports for the purpose of entering or leaving Hong Kong. What did the Court of Appeal do? That is set out at the bottom of p. 5 of the transcript of the judgment, where this appears:-

"The sentence on Counts 1 and 6 are therefore set aside and there is substituted for them a term of 9 months on each charge concurrent."

12. Would it be right to treat this appellant more severely than that? In my judgment the answer is "no". Moreover, there is a material distinction in the appellant's favour between this case and that one. There the false travel documents were found in parts of this territory which can be reached only after immigration and customs had been cleared. In the present case, the false travel documents were found in the possession of a transit passenger.

13. It seems to me that the learned Magistrate did not bear in mind, or sufficiently in mind, the special features of this case. He seems to have regarded it as a common sort of case. He says that it is "... another case of a Philippines citizen being apprehended herewith a forged and an unlawfully obtained travel document". I do not know if he really meant to say that it is common for such persons to have both forged and unlawfully obtained travel documents - but I leave that to one side. He says that he has had a number of similar cases and that one year's imprisonment is the sentence which he normally passes in such cases. I cannot help wondering if all those cases really involved transit passengers. But if they did, then it seems to me that the sentences imposed may well have been far too severe in the absence of aggravating circumstances`.

14. In passing, I question whether it is appropriate to lay down not just a range but a precise sentence for an offence-which is what the learned magistrate seems to have done or come close to doing. However much the circumstances of certain cases may seem alike there are often significant differences from case to case, sometimes obvious and sometimes subtle.

15. Now returning to the main point, it must be remembered that quite apart from its inherent seriousness an offence can become more serious by reason of its prevalence. Indeed, the prevalence of a particular offence is the classic reason for imposing deterrent sentences in respect of the same. If a court does not pay sufficient regard to the circumstances of the case before it and confuses offences which are not prevalent with those that are, inappropriate sentences is very much the likely result. One must bear in mind that deterrent sentences have to be justified. Counsel for the Crown has been unable to identify any other case of a transit passenger convicted of being in possession a forged or unlawfully obtained travel document. Such possession on the part of persons in transit does not appear to be prevalent even if the use of such travel documents to enter and leave Hong Kong is.

16. Taking everything into account, I have come to the conclusion that the appeal must be allowed to the extent of reducing the sentence from one of one year's imprisonment to one of six months' imprisonment. The appeal is allowed accordingly.