HKSAR v. CRISTIAN ALBERTO CARDONA QUINCHIA also known as DANIEL MARTIN CHAVEZ CANO and CHAVEZ CANO DANIEL MARTIN

CACC 106/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 106 OF 2016

(ON APPEAL FROM DCCC 155 OF 2016)

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REASONS FOR JUDGMENT

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1.  The applicant appeared in the District Court charged with four offences. The 1^st charge was “Using a forged travel document for the purpose of Part II of the Immigration Ordinance”, contrary to section 42(2)(b) and punishable under section 42(4) of the Immigration Ordinance, Cap 115. The 2^nd charge was “Breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115. The 3^rd charge was “Using a forged travel document for the purpose of Part II of the Immigration Ordinance”, contrary to section 42(2)(b) and punishable under section 42(4) of the Immigration Ordinance, Cap 115. The 4^th charge was “Possession of a dangerous drug”, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.  The applicant appeared before District Judge Woodcock (“the judge”) on 13 April 2016 and pleaded guilty to all four charges.  On the same day he was sentenced to a total of 3 years’ imprisonment.

3.  The applicant now applies for leave to appeal against his sentences.  At the hearing of the application I granted it in respect of all grounds except ground 3 and said I would give my reasons for doing so at a later date.  This I now do.

The prosecution case

4.  In an Amended Summary of Facts which was used for the purpose of sentencing the applicant, the applicant admitted that at about 11:48 pm on 31 October 2015 at the Arrival Hall of the China Ferry Terminal Immigration Control Point at Canton Road, Tsim Sha Tsui, he presented to an Immigration officer a forged Republic of Guatemala passport, numbered 272780472, in the name of “CIFUENTES FLORIAN Walter Orlando” for the purpose of entering Hong Kong.  The applicant was allowed to enter Hong Kong and stay until 30 November 2015.  These facts formed the basis for the 1^st charge. 

5.  At about 5:34 pm on 23 November 2015 at the Lok Ma Chau Spur Line Control Point in the New Territories, the applicant presented to an Immigration officer the same forged Republic of Guatemala passport for the purpose of leaving Hong Kong.  The applicant was then allowed to leave Hong Kong and he proceeded to the Shenzhen Futian Control Point in Mainland China.  These facts formed the basis of the 3^rd charge.  

6.  On 24 November 2015 the applicant was refused entry to China and was sent back with his passport to the Lok Ma Chau Spur Line Control Point.  An Immigration officer then conducted a secondary examination with the applicant during which the applicant claimed that he was the rightful holder of the passport and that the passport bore his true identity.

7.  Customs officers conducted a body search of the applicant and two packets of cocaine were found inside the left front pocket of his jacket.  Upon examination by the Government Chemist these two plastic packets were found to contain 0.71 grammes of a powder containing 0.57 grammes of cocaine and 0.60 grammes of a powder containing 0.43 grammes of cocaine respectively.  The estimated retail price of the cocaine was HK$1,075.  The applicant was then arrested for possession of a dangerous drug and in a cautioned interview he said that he had spent around 20 days in Hong Kong and that the items found from his left front jacket pocket were cocaine that he had purchased for HK$1,000 in Lan Kwai Fong.  He said he bought the cocaine because he wanted to try it.

8.  A check of the applicant’s fingerprints revealed that his true identity was “Cristian Alberto CARDONA QUINCHIA”, also known as “Daniel Martin CHAVEZ CANO” and “CHAVEZ CANO DANIEL MARTIN”.  On 20 August 2015 a deportation order had been issued against the applicant and a copy of it served on him and explained to him.  After serving a prison sentence the applicant was then deported to Bogota, Columbia in August 2015.  When he entered Hong Kong on 31 October 2015 he was in breach of this deportation order.

9.  The applicant’s passport was subsequently examined by a document examiner of the Government Laboratory, who confirmed that the passport was forged by way of page-substitution.  The bio-data page, the second page of the passport, does not form a continuous folio with the rest of the passport and is not original.  Also, this page is different in ultra-violet fluorescent properties from the other pages of the passport. 

10.  The applicant was then arrested and cautioned for his breach of the deportation order and for using false information in entering and leaving Hong Kong.  Under caution, he remained silent but did confirm that his real name is “Cristian Alberto CARDONA QUINCHIA” and that he is a Columbian national.

The mitigation

11.  The applicant’s counsel informed the judge that the applicant is a Columbian national of 26 years of age.  He is single and received education up to high school level before he came to Hong Kong where he lived with his grandmother.  His parents are alive and he has four brothers aged between 14 to 25 years old. 

12.  The applicant was a motorbike mechanic between 2008 and 2011 since when he has been unemployed.  He was performing casual work as a seller of clothes in Columbia.  It was his explanation that he came to Hong Kong because there were persons in Columbia who were constantly blackmailing him for money and threatening to kill him if he did not pay them.  This is why he came to Hong Kong notwithstanding the existence of the deportation order. However, his ultimate destination was not Hong Kong but China.  He understood he needed a visa to enter China and believed that it was easier to do so in Hong Kong.

13.  Through his counsel he expressed remorse for his wrong doing and said that he would never attempt to return to Hong Kong whilst the deportation order remained in force.

14.  In respect of the cocaine his counsel said that the applicant was unhappy and he just bought it for himself in order to try it.  He denied that he is a drug addict.  His counsel presented a letter which the applicant himself had written to the court.

15.  The applicant has a two prior convictions for burglary in 2014 for which he was sentenced to a total of 27 months’ imprisonment.

The Judge’s Reasons for Sentence

16.  After setting out the facts underlying the various charges and the mitigation advanced on behalf of the applicant the judge referred to authorities which had been presented to her by the prosecution.  These were HKSAR v Pahila[1]and HKSAR v Cortez Emily Bisoy[2] and they guided the judge to the starting points she should adopt for the first three charges.

17.  The judge then referred to the case of HKSAR v Wabhi Tri-Wahyu also known as Wahyu Wabhi Tri, Supri Yatnak and Supriyatnak[3]and said of it:

“ The Court of Appeal has also said that such sentences for those offences may properly be ordered to be served consecutively, and I have referred myself to HKSAR v Wabhi Tri-Wahyu also known as Wahyu Wabhi Tri, Supri Yatnak and Supriyatnak, CACC 345/2014. The Court of Appeal finds that to make a breach of deportation order sentence consecutive to other sentences imposed for immigration offences appropriate, to reflect the seriousness of making false claims to immigration officers.”

18.  The judge then said that she would take a starting point of 24 months’ imprisonment for the charges 1, 2 and 3 and then discount those sentences by one third for the applicant’s pleas of guilty.  This produced final sentences of 16 months’ imprisonment for each of these three charges.

19.  For the possession of cocaine charge, which is the 4^th charge, the judge took a starting point of 12 months’ imprisonment which she then discounted by one third to arrive at a final sentence of 8 months’ imprisonment.  She revealed how she reached this sentence when she said:

“ For Charge 4, possession of the cocaine, a term of imprisonment is inevitable for possession of a dangerous drug in such circumstances, but I take into account the quantity is not a significant amount. Having considered that, I take a starting point of 12 months’ imprisonment.”

20.  The judge went on to consider the totality principle, the nature of the four charges and the dates on which they were committed. 

21.  Then, immediately before announcing her sentences for each of the offences, the judge returned to what she understood to be the Court of Appeal’s attitude to whether sentences for breach of a deportation order should be ordered to be served consecutively to any other sentences being imposed on the offender.  The judge said:

“I will also take into account the Court of Appeal’s view that a sentence for a breach of deportation order should be served consecutively to other immigration offences, in particular, using a false travel document.”

22.  She thereupon imposed the following sentences upon the applicant:

Charge 1 – 16 months’ imprisonment.

Charge 2 – 16 months’ imprisonment which was ordered to be served consecutively to charge 1.

Charge 3 – 16 months’ imprisonment which was ordered to be served concurrently with the sentence for charge 1. 

Charge 4 – 8 months’ imprisonment of which 4 months was ordered to be served consecutively to the sentence for charge 1. 

The effect of these orders was that a total sentence of 3 years’ imprisonment was imposed on the applicant.

The grounds of appeal

23.  There are six grounds of appeal.  The first three grounds complain that the judge was wrong to impose a total sentence of 32 months’ imprisonment for the first two charges as the underlying criminality for them was the same, namely the applicant’s unlawful presence in Hong Kong.  Either wholly concurrent or only partially consecutive sentences should have been imposed. 

24.  In support of these grounds Mr Percy, who appeared for the applicant on this application but not below, accepted that the starting point of 24 months’ imprisonment that the judge adopted for each of the first three charges was justified.  His only complaint is that the judge relied on a misunderstanding of what was said by Macrae JA[4] in Wabhi Tri-Wahyu to justify her order that the sentence for the breach of the deportation order charge should run consecutively to the sentences for using a forged travel document charges.  In that case Macrae JA, contrary to the understanding of the judge, was dealing with orders made at trial whereby the sentence for the breach of deportation order offence was ordered to run concurrently with a making a false representation to an Immigration officer offence.

25.  Mr Percy referred the court to the decision of the Court of Appeal in HKSAR v Pham Van Tuan[5]where it was said that the two offences of unlawfully remaining in Hong Kong and breach of a deportation order had the same underlying criminality, namely the offender’s unlawful presence in Hong Kong.  The breach of a deportation order, the Court of Appeal said, was an aggravating factor in the commission of the unlawful remaining offence. 

26.  Mr Percy accepted that in respect of his client the offences were different but argued that, as in Pham Van Tuan, the purpose underlying the two offences, namely an intent to remain in Hong Kong by whatever means, was the same.

27.  In respect of the dangerous drug offence Mr Percy submitted that the starting point of 12 months’ imprisonment was excessive.  He referred the court to the Court of Appeal’s leading judgment on sentencing for simple possession, which does not seem to have been brought to the attention of the judge.  The case is HKSAR v Mok Cho Tik[6] and Mr Percy argued that, assuming the judge was applying what was said in that case, then she may have thought that the Court of Appeal was laying down a sentencing tariff of 12‑18 months, and if that was her thinking then she was wrong.  In its judgment in that case the Court of Appeal made it clear that a sentencing court has a discretion to impose a lesser and more rehabilitative oriented sentence if appropriate. 

28.  Given the amount and value of the cocaine possessed by the applicant and given that the applicant has no prior drug convictions, Mr Percy submitted that the starting point of 12 months’ imprisonment was excessive.  His own experience in magistrates courts is that an immediate custodial sentence was the norm but for a quantity such as 1 gramme possessed by a non-addict, curious first-time user the starting point would be much less than 12 months.

29.  The fifth and sixth grounds of appeal are that, having regard to the totality principle the final sentence is excessive.

The respondent’s submissions

30.  The respondent, represented by Mr Derek Wong, Senior Public Prosecutor, conceded that the judge had an incorrect understanding of the Wabhi Tri-Wahyu case.  However, he submitted that the proper approach of the Court of Appeal when dealing with multiple offences is to determine whether the overall sentence is excessive.  That being the ultimate question for the court, if the sentence is appropriate, as he submitted it is, then, notwithstanding the error by the judge, leave to appeal should not be granted.

31.  He distinguished the Pham Van Tuan case from the applicant’s case as in that case the immigration offence was only unlawfully remaining whereas in the present case it was using a forged travel document.  It was, therefore, quite proper for the judge to order consecutive sentences.

32.  In respect of the sentence for the dangerous drugs offence Mr Wong submitted that the applicant’s situation was governed by the Mok Cho Tik guideline and that as the applicant was being sentenced to a period of imprisonment for his other offences it was not open to the judge to sentence him for the drug offence to a Drug Addiction Treatment Centre or to suspend the sentence.  When the court inquired of Mr Wong if there was a pattern of sentencing in the magistrates courts for possession of cocaine of this quantity, he said he understood from those instructing him that the sentence was normally a sentence of imprisonment ranging from 3‑4 months.

33.  On the overall totality Mr Wong submitted that the final sentence was within an appropriate range and was not excessive.

Discussion

34.  The judge erred in her understanding of the Wabhi Tri-Wahyu caseand may to have also thought that the Court of Appeal required that the sentences be ordered to run consecutively.  There is, in fact, no direct authority on this point but the application of general principles would suggest that there is a quite different culpability between the 2^nd charge and the 1^st and 3^rd charges. That difference adds to the applicant’s culpability and so it would not be wrong in principle to order consecutive sentences.  But that should still not cause the totality principle to be disapplied.  It may well be appropriate in many case for the sentences to be largely, if not wholly, consecutive in order to strengthen the bite of the breach of deportation order offence and provide a meaningful deterrent to persons against whom such orders are made from breaching those orders.  But, these are properly matters that should be determined by the Court of Appeal.

35.  On the dangerous drugs offence I am of the view that it is reasonably arguable that the Court of Appeal’s judgment in Mok Cho Tik allows a wider discretion than simply a sentencing range of 12-18 months’ imprisonment and that given the quantity possessed by this applicant and other circumstances a sentence outside of this range should have been considered.

Conclusion

36.  For these reasons I granted the applicant leave to appeal his sentence other than on ground 3 of his Perfected Grounds of Appeal Against Sentence.