HKSAR v. DAVID REYNALDO JR. GUMAMIT

CACC 246/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 246 OF 2005

(ON APPEAL FROM DCCC NO. 177 of 2005)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 26 April 2005, the applicant, now aged 34, pleaded guilty in the District Court before Deputy Judge A Chan to a single charge of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200.  His co-defendant (D1) also pleaded guilty to this 1^st charge, as well as to a number of other substantive charges which were related to the conspiracy.  Sentencing was adjourned until 10 May 2005 when, having considered a probation officer’s background report, the judge imposed a term of 2 years’ imprisonment on the applicant against which he now seeks leave to appeal.  D1 was sentenced to 40 months and has made no application to this court.

2.  The particulars of the conspiracy in charge 1 set out the principal allegations against the applicant.  These were that between early November 2004 and 15 November 2004, the applicant conspired with D1 to:

“… defraud the Consulate-General of Japan by dishonestly preparing (i) a forged Hong Kong Identity Card numbered P767531(2) in the name of DAVID, Jr. Reynaldo Gumamit, (ii) a false Philippines passport numbered EE815345 in name of DAVID, Reynaldo Jr. Gumamit, and (iii) false instruments, namely (a) one bmcsoftware company letter dated 11th November, 2004, (b) one Malayan Banking Berhad savings account passbook numbered 8104901 in name of DAVID, Reynaldo Jr. Gumamit, (c) false name cards, (d) false Hong Kong Extension visa, and (e) false Hong Kong immigration stamps, with intention that they and/or their copies be used and/or furnished to the Consulate-General of Japan to support DAVID, Reynaldo Jr. Gumamit’s application for a visa to Japan with false pretence that DAVID, Reynaldo Jr. Gumamit was a lawful Hong Kong resident with gainful employment.” (Appeal bundle p. 1)

The facts

3.  Immigration officers went to the Japanese Consulate-General in Central on 15 November 2004 during the afternoon where they arrested D1 and another man when they were collecting documents relating to the applicant’s Japanese visa application.  D1 was then taken back to the place where he was staying.  He was seen to signal to the applicant who happened to be in the lobby at that time.  He, too, was arrested.

4.  When the applicant’s luggage was searched, he was found to have 7 name cards in which he was described as a graphic designer at a Hong Kong company.  In fact, as was later confirmed from records, both the applicant and D1 were first-time visitors to Hong Kong, having arrived on 8 November 2004. 

5.  The applicant admitted the offence when interviewed saying that D1 had promised to get him a visa for Japan which would be easier to obtain at the Consulate-General in Hong Kong.  He paid D1 USD2,000 in August 2004 and handed him his Philippines passport and some passport photographs and he had agreed to pay him a further USD2,000 on receipt of his Japanese visa.  The applicant went on to say that they had gone together to the Japanese Consulate-General on 11 November 2004 where he expected to submit the relevant documents for the purposes of acquiring a visa.  He did this, but was told that some documents were missing.  On this occasion, a visa was refused.  The applicant described himself as “shocked” to find an extra passport among the documents given to him by D1 which he noticed contained his particulars and his photograph.  Nevertheless, he returned on 12 November 2004, and submitted the necessary visa documentation including an application form, a false Hong Kong identity card, a reference from the employers in Hong Kong he purported to have, a false Philippines passport, a bankbook and other items.  The applicant admitted that his only concern had been to obtain a visa and, in this sense, had not cared what documents D1 gave him.

Sentencing

6.  In an admirable summary of the nature of the conspiracy between D1 and the applicant (referred to as D2), the judge said:

“	1.	The 1st defendant pleaded guilty to Charges 1, 2, 5, 6 and 8. D1 ran a travel agency in the Philippines. His travel agency is no ordinary travel agency. He assisted his fellow countrymen to work as illegal workers abroad. In the course of it, he forged passports, Hong Kong ID cards, bank passbooks, employment letters, travel documents, and implements, such as visas, immigration stamps, etc. He did all these for financial rewards.
	2.	In respect of Charge 1, D1 assisted D2 in using some of the above false documents and instruments to apply for a Japanese visa. D1 was a professional. He came to Hong Kong after visa application [procedures] in Manila and Singapore had been tightened up. As a result, D1 came with D2 to Hong Kong [so] as … to test the water.” (Appeal bundle p. 22)

7.  The judge adopted a 5-year starting point for D1 having described the offence as a “sophisticated, international crime which attacks the immigration [control] system and also the integrity of visas as part of international travel documents”.  With regard to the applicant’s role, the judge accepted that he was “simply a customer” and that he played no part in the operation of the travel agency.  However, he found that the applicant had also made himself a party to a sophisticated crime with international implications, describing the applicant as someone who was aware that a forged Hong Kong identity card and a false Philippines passport would be used in this jurisdiction to deceive the Japanese Consulate-General.  The judge added:

“	12.	D2’s act of using the forged ID card will no doubt cause damage to the integrity of the Hong Kong ID cards.
	13.	To use Hong Kong as a base for launching false visa applications would inevitably tarnish the reputation of Hong Kong.
	14.	According to HKSAR v Li Chang Li HCMA 935/2004, the illegal use of forged Hong Kong ID card on a plea of guilty is one of 15 months’ imprisonment. Given that, the starting point will be approximately 2 years.
	15.	Having considered the circumstances in this case, I am of the view that a starting point of 3 years is appropriate for D2. D2 will be given his usual one-third discount.
	16.	In respect of Charge 1, D2 will be sentenced to a term of imprisonment of 2 years.
	17.	D1 and D2 came to Hong Kong with the sole purpose of committing crimes. It was said in HKSAR v Hong Chang Chi [2002] 1 HKC 295 that,
		‘The applicant only came to Hong Kong for the purpose of furthering his criminal enterprise. Anyone who acts in this way, to undermine the laws of Hong Kong, deserves no sympathy. What is more, it should be made clear to non-residents of Hong Kong, whether from the Mainland (or Taiwan) or from far-flung jurisdictions, that if they come here in order to break the law they will be treated no differently, and certainly no more leniently than criminals who are normally resident here.’
	18.	So in that regard I am not prepared to reduce … D2’s sentence any more.” (Appeal bundle pp. 23-24)

The application

8.  Mr Richard Wong, on the applicant’s behalf, advanced two grounds of appeal which effectively amount to the same thing expressed in different ways.  He argued that the sentence was manifestly excessive and that the 3-year starting point which the judge adopted was too high.  In particular, it was contended that the judge had given insufficient consideration to the fact that the applicant was a “customer” of D1 and, as such, had only come “to know the falsity of [the forged documentation] when he was at the Japanese Consulate-General”.

9.  With respect, this submission incorporates a high degree of naїvety.  The judge had carefully assessed the facts of the case and was entirely justified in our opinion in arriving at the conclusion that the applicant was party to a sophisticated crime with international ramifications.  It was obvious that the applicant was well aware that he would be provided with the documents he needed to obtain a visa to travel to Japan and that these would necessarily be false.  As Ms Polly Wan for the respondent rightly pointed out in her written submission, the applicant would have been strongly motivated to go to Japan as he had admitted that he was hoping to find a job there which, according to the answers the applicant gave to the probation officer who prepared his background report, would have enabled him to earn a monthly salary of USD2,000.

10.  There are no sentencing guidelines for this kind of offence.  However, in the recent decision in HKSAR v Li Chang-li [2005] 1 HKLRD 865 to which the judge had referred, where an English translation of the headnote is provided in the report, this court held that there should be, in the absence of exceptional circumstances, a 12-month sentence after plea for a two-way permit holder from the Mainland who was found in possession of a forged identity card or a card belonging to someone else, and that a sentence of 15 months’ imprisonment should be imposed after a plea of guilty where such an identity card was displayed or used for seeking illegal employment or extending the period of stay in Hong Kong. 

11.  In the present case, there was an additional factor taken into account by the judge over and above those considered in HKSAR v Li Chang-li.  The judge, having dealt with the applicant’s use of a forged identity card causing damage to the integrity of the system, went on to state, in the passage from the Reasons for Sentence we have already set out, that Hong Kong’s reputation is tarnished if it is allowed to be seen as “a base for launching false visa applications”.  Another obviously distinguishing feature is that this case involved the use of a counterfeit passport. 

12.  The applicant had, of course, only come to Hong Kong to further his criminal purpose using Hong Kong as it was perceived as being an easier place to obtain a visa than elsewhere.  Although there is no suggestion that he was ultimately intent upon anything other than finding himself well-paid employment in Japan having fallen on comparatively hard times in the Philippines, there can be no question that the courts have a duty more than ever before to protect so far as possible the integrity of the visa system.  For a variety of obvious reasons, visas should only be granted to those who are accurately and truthfully described in visa application forms submitted to the authorising agencies in question and for the purposes for which they are said to be required.

Conclusion

13.  In all the circumstances of this case, we are satisfied that the judge imposed a proper sentence.  Accordingly, the application is dismissed.