HKSAR v. CRISTIAN ALBERTO CARDONA QUINCHIA (ALSO KNOWN AS DANIEL MARTIN CHAVEZ CANO AND CHAVEZ CANO DANIEL MARTIN)

DCCC 155/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 155 OF 2016

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Reasons for Sentence

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1.   The defendant has pleaded guilty to four charges.

2.   Charge 1, using a forged travel document where the defendant entered Hong Kong on 31 October 2015 via the Arrival Hall at China Ferry Terminal in Tsim Sha Tsui using a forged passport.  Charge 2, as a result of entering Hong Kong, the defendant is in breach of a deportation order.  The date of that deportation order is 20 August 2015; it was in force when the defendant entered Hong Kong on 31 October thereby committing this breach.

3.   Charge 3 is a using a forged travel document offence where on 23 November 2015 the defendant left Hong Kong using the same forged travel passport, forged document.  Charge 4 is a possession of dangerous drugs offence.  On 24 November 2015, immigration officers searched the defendant and found in his possession a dangerous drug, namely 1.31 grammes of a powder containing 1 gramme of cocaine.

4.   The facts are straightforward.  As I have said, Charge 1, using a forged travel document, the defendant entered Hong Kong just before midnight on 31 October 2015.  He came through the China Ferry Terminal situated in Tsim Sha Tsui.  The defendant presented to an immigration officer a Guatemalan passport in the name of Cifuentes Florian Walter Orlando which later was found to be a false document.  On that date he was allowed to enter and stay until 30 November 2015.

5.   Twenty-three days later, the defendant left Hong Kong, committing Charge 3, through Lok Ma Chau Spur Line Control Point in the New Territories.  He presented the same forged passport to an immigration officer and was allowed to leave.  He then proceeded to the Shenzhen Control Point in mainland China.  What happened next was that he was refused entry into China.

6.   The Chinese Immigration Department sent the defendant back through Lok Ma Chau Spur Line Control Point to Hong Kong. That took place the next day, 24 November 2015.  When Hong Kong immigration officers dealt with the defendant, he claimed that he was the rightful holder of the Guatemalan passport which bore his true identity. 

7.   As a result of an investigation, the defendant was searched by customs officers.  In his jacket pocket an officer found two packets of cocaine.  As I have said, upon examination, the total amount of powder was 1.31 grammes containing 1 gramme of cocaine.  The estimated retail price was just over $1,000.

8.   Under caution, the defendant admitted that he had purchased the cocaine in Lan Kwai Fong for $1,000 because he wanted to try it.  Under caution, he also admitted that (after it was revealed by way of his fingerprints) the passport he used to enter and leave Hong Kong was forged, he admitted under caution that his real name was Cristian Alberto Cardona Quinchia. 

9.   The defendant is not a man with a clear record.  In October 2014 he was sentenced to a total of 27 months’ imprisonment by the District Court for two burglary offences.  For that sentence, the defendant was released from prison on 26 August 2015.  He was then put on a plane and flown back to Bogota, Columbia. 

10.   Prior to his leaving Hong Kong, on 20 August 2015, the defendant was served with a deportation order.  The contents of the order were explained and the defendant signed indicating he understood the contents of that order.

11.   In mitigation today, I have been told that the defendant came to Hong Kong with the purpose of obtaining visas to go to China; his ultimate destination was mainland China.  I have been told that the defendant was fleeing Columbia because he was being blackmailed and threatened, but why and when was not elaborated upon.

12.   The defendant is 26 years old.  He is single.  When he left Columbia, he was not working at that time.  He had previously been a motorcycle maintenance worker as well as trying his hand at buying and selling garments. 

13.   I have also had a letter from the defendant explaining that he is remorseful.  He also says that he has not wasted his time whilst in custody, has learned better English and Cantonese and found God.  In his letter he asks for leniency.

14.   Mr Lai on behalf of the defendant has said all he can in mitigation. 

15.   Mr Law for the prosecution has produced some useful authorities for my consideration.  These include the Court of Appeal case, HKSAR v Pahila [2007] 1 HKLRD 410.  In that authority the appellant made false representation to an immigration officer by way of producing a false passport.  The Court of Appeal was of the view that sentences after plea of up to 18 months was justified.  What that means is a starting point of 27 months is justified.

16.   For a breach of deportation order, I have been referred to and take into account the authority of HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762 where the Court of Appeal was of the view that after plea, an 18-month term of imprisonment was appropriate for a breach of deportation order.  Again, that would mean a starting point of 27 months.

17.   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.  It means it is not entirely clear who is really admitted into Hong Kong via immigration channels.  It also reflects the seriousness of breaching a court order such as a deportation order.

18.   Defendant, please stand up. 

19.   Having taken into account the facts of this case, mitigation put forward, the authorities produced and those that I consider relevant, I intend to deal with the four charges in this way. 

20.   For Charges 1, 2 and 3, I will take a starting point of 24 months.  You have pleaded guilty, you are entitled to a discount of one-third.  After that discount is applied, for Charges 1, 2 and 3, you are sentenced to 16 months’ imprisonment for each charge.

21.   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.  You have pleaded guilty, you are entitled to a discount of one-third.  After that discount is applied, for Charge 4, you are sentenced to 8 months’ imprisonment.

22.   I will consider the totality principle and the nature of all four charges and the dates on which they were committed. 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. 

23.   Therefore, after considering those factors, the following sentences will be imposed.  Charge 1, you are sentenced to 16 months’ imprisonment.  Charge 2, you are sentenced to 16 months’ imprisonment. I order that the 16 months of Charge 2 be served consecutively to Charge 1. For Charge 3, you are sentenced to 16 months’ imprisonment.  I order that that 16 months be served concurrently to Charge 1.  For Charge 4, you are sentenced to 8 months’ imprisonment.  I order that 4 months of that 8 months be served consecutively to Charge 1.  Therefore, the total sentence is one of 3 years’ imprisonment for all four charges. 

DEFENDANT: I understand.

24.   You understand.  The total sentence is one of 3 years’ imprisonment.