HKSAR v. BRUHAT ARNAUD

DCCC 74/2018

[2018] HKDC 917

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 74 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of “conspiracy to obtain services by deception”, contrary to section 18A(1) of the Theft Ordinance, Cap. 210, sections 159A and 159C of the Crimes Ordinance, Cap. 200 and sections 2(3) and 4(2) of the Criminal Jurisdiction Ordinance, Cap. 461.

Facts

2.  On 14 November 2017, a Sri Lankan male (“the Male”) attempted to board Flight CX379 bound for Dusseldorf, Germany at the Hong Kong International Airport but was unsuccessful.  He was found in possession of a boarding pass for Flight CX379 from Hong Kong to Dusseldorf (“Exhibit 1”) and a suspected forged French passport bearing the photo of the Male (“Exhibit 2”).  The Male was removed from Hong Kong on the same day.

3.  Upon examination, it was found that Exhibit 2 bore the personal particulars and passport number of the Defendant. Forensic examination confirmed that Exhibit 2 was forged.

4.  Record check revealed that the Defendant had arrived in Hong Kong on the strength of his French passport on 13 November 2017 and he was permitted to remain in Hong Kong as a visitor. No departure record was found subsequent to the arrival of the Defendant. 

5.  On 15 November 2017, the Defendant checked in for Flight AF0185 bound for Paris, France at the check-in counter of Air France at the Hong Kong International Airport and obtained a boarding pass for that flight (“Exhibit 3”).

6.  On the same day, the Defendant checked in for Flight UO763 bound for Phuket, Thailand at the check-in counter of HK Express and obtained a boarding pass for that flight (“Exhibit 4”).

7.  At around 8:28 p.m. on the same day, the Defendant presented for departure clearance at the immigration counter of the Hong Kong International Airport on the strength of his passport and the boarding pass for Flight UO763 (Exhibit 4). The Defendant was intercepted for secondary examination. Upon search, the Defendant was found in possession of the boarding pass for Flight AF0185 (Exhibit 3). 

8.  The Defendant was arrested. Under caution, the Defendant admitted that he was going to transfer the boarding pass for Paris (Exhibit 3) to an unknown Indian male near the gate for free air tickets. 

9.  In subsequent cautioned interview, the Defendant admitted that:-

(a) In April 2017, he met a Spanish male in Bangkok and the Spanish male asked him to help someone to obtain a boarding pass in exchange for free travel;

(b) He was interested and they exchanged contact means;

(c) 6 months later, the Spanish male contacted him and sent him e-tickets by e-mail to help someone to obtain a boarding pass for free air ticket;

(d) The Spanish male gave his contact details to an Indian male;

(e) The Indian male was the organizer who arranged him to come to Hong Kong to give a boarding pass to someone else;

(f) The Indian male instructed him to get 2 boarding passes at the counter of Cathay Pacific Airways in Kuala Lumpur, one for the flight from Kuala Lumpur to Hong Kong and one for the flight from Hong Kong to Dusseldorf;

(g) Upon arrival at the Hong Kong International Airport on 13 November 2017, he followed the instructions of the Indian male and gave his boarding pass for Flight CX379 from Hong Kong to Dusseldorf to a European male for someone to fly to Germany;

(h) He then presented for arrival clearance in Hong Kong without continuing his onward flight to Dusseldorf;

(i) He later received e-tickets for the flights to Phuket and Paris respectively;

(j) On 15 November 2017, as instructed by the Indian male, he checked in at the counters of Air France and HK Express and obtained 2 boarding passes for Flight AF0185 to Paris and Flight UO763 to Phuket respectively;

(k) He planned to follow the instructions of the Indian male and to give his boarding pass bound for Paris to someone for someone to go to Paris;

(l) He intended to go to Phuket, Thailand only and he had no intention to go to Paris;

(m) The Indian male had given him THB$20,000 and 5 free air tickets and had promised to give him another THB$20,000 in Phuket after the transfer of the boarding passes; and

(n) He was aware that another person could travel to Europe with the boarding pass under his name.

Mitigation

10.  The defendant is aged 32, single and was born in France.  Prior to the present offence, he worked as a driver earing about US$1,100 per month.  He has clear criminal record in Hong Kong and France.  He and his elder brother were responsible for taking care of the parents in France.

11.  In mitigation, it was submitted that the defendant committed the offences out of greed.  He was not the mastermind of the scheme and he only took part in it out of greed.  Given his guilty plea and no loss was caused to the airlines, the court was urged to impose lenient and concurrent sentences on the defendant.

Sentence

12.  The present case relates to scheme for human trafficking. 

13.  In HKSAR v Cheng Kwong Chung & Ors, CACC 536/2001, the Court of Appeal stated at paragraph 51:

“We take the view that offences such as these are very serious. … the offences deliberately seek not only to undermine Hong Kong’s laws but also the immigrations laws of other jurisdictions, and to enable persons to travel on aircraft when they are not authorized to do so. It hardly needs to be emphasized that conduct of this kind is to be treated by our courts with a firm hand, not least when air security and international immigration controls carry an importance greater than ever before.”

14.  In HKSAR v He Wenyou [2009] 3 HKLRD 445, the Court of Appeal said at paragraph 9:

“ We must point out that a higher starting point is applicable to this kind of cases, which clearly involve sophisticated planning and arrangement. Making use of Hong Kong’s position as a hub of communications, offenders assist illegal immigrants in entering a third country. By means of a fraudulent scheme, offenders help illegal immigrants enter the restricted area of the Hong Kong International Airport, where they then use false boarding passes to board flights bound for a third country. Upon arrival in that country, they will use false identity documents for gaining entry into that country. These activities will obviously tarnish Hong Kong’s international reputation. Furthermore, as a result of those activities, immigration authorities of foreign countries will become wary of visitors from Hong Kong even when they are holding lawful travel documents, which means that visitors from Hong Kong will have to suffer a certain degree of inconvenience when they enter those countries. Severe, deterrent sentences must therefore be imposed for those offences.”

15.  The Court of Appeal in HKSAR v Lee Shinwon & Ors [2012] 1 HKLRD 283 said that because of the above-mentioned policy considerations, the sentencing goal is deterrence and the sentence must be sufficient severe so that persons who may be approached to assist in such schemes will realize the seriousness of the crime and the consequences should they be detected.

16.  In the present case, the defendant was not the person being trafficked.  Whilst I accept the defendant is not the mastermind behind the scheme, he was somehow recruited to assist in the implementation of the scheme.  As the Court of Appeal remarked in Lee Shinwon, without the defendant’s cooperation, the conspiracy would collapse. He was essential to the conspiracy’s successful implementation. 

17.  In the present case, the facts revealed while the defendant presented for departure clearance at the immigration counter his passport and the boarding pass for the fight to Phuket, he was intercepted for secondary examination and was in possession of the boarding pass for Paris.  It is clear that but for the interception, he would have entered the restricted area and then passed the boarding pass for Paris to someone else as instructed. 

18.  In view of the circumstances of the case, the background of the defendant and the cases referred to by the defence[1], I consider the appropriate starting point to be 3 years’ imprisonment for each count.  Given the defendant’s guilty plea, the sentence is reduced to 2 years’ imprisonment for each count.  Apart from that, I do not see other mitigating factor justifying further reduction of sentence.  The two offences are separate and distinct offences and in theory their sentences should run consecutive to each other.  Having considered the totality principle, I consider a total sentence of 2 years and 6 months is sufficient to reflect the criminality of the defendant.  In the circumstances, I order 6 months of the sentence for charge 2 to run consecutive to the sentence for charge 1, making a total sentence of 2 years and 6 months.  The defendant is therefore sentenced to a total sentence of 2 years and 6 months’ imprisonment.