HKSAR v. YE YING

HCMA184/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.184 OF 2003

(ON APPEAL FROM TWCC 349 OF 2003)

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J U D G M E N T

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1. On 13 February 2003 the appellant and a co-defendant, Chen Guang Deng, pleaded guilty at Tsuen Wan Magistrates' Court to an offence of attempting to obtain services by deception, contrary to section 159G of the Crimes Ordinance, Cap.200 and section 18A(1) of the Theft Ordinance, Cap.210.

2. They were each sentenced to a term of 12 months' imprisonment against which sentence the appellant appealed. On 28 May I allowed the appeal to the extent that I substituted a term of eight months' imprisonment for that imposed by the magistrate and these are my reasons for so doing.

3. The facts of the offence read over to, and admitted by, the appellant in the magistrates court were as follows :

" CHEN Guang-deng and Ye Ying are citizens of People's Republic of China (PRC) and holders of genuine PRC passports. They arrived in Hong Kong through Lo Wu Boarding Crossing Point on 25 January.

Aoi Keiko (PW1) and KWAN Ka-hung (PW2) are ground staff of Japan Airlines Ltd and they work at Hong Kong International Airport, Chek Lap Kok. At about 1515 hours on 27 January, the defendants were about to board flight JL 734 for Tokyo at Gate 42 of Hong Kong International Airport and they produced two boarding passes to PW1 for inspection. They failed to produce their passports when requested to do so by PW1. The Immigration Department was informed by PW2. The defendants later led Immigration officers to a public male toilet in the airport to recover their passports, boarding passes and some air-tickets.

After investigation the defendants' passports were found to be genuine and no offence against the Immigration Ordinance was disclosed. The case was then referred to police for further inquiry as the names on the Japan Airlines Ltd boarding passes were different from the defendants' passports. The defendants were arrested by the police. Under caution, the defendants stated that after they checked in for flight CI651 to Malaysia on 27 January at Hong Kong International Airport, they were somehow deceived by an unknown male to abandon their own passports, boarding passes and air-tickets in a male public toilet in exchange for two Japan Airlines Ltd boarding passes."

4. In his Reasons for Sentence the magistrate (inter alia) said this in relation to the appellant and his co-defendant :

"I was told that they each had a clear record and that they had come to Hong Kong from the mainland en route to Malaysia. Whilst at the airport they were deceived by an unknown person into going to Japan.

Cases such as this are very common. A number of PRC citizens have been arrested recently whilst in transit at Hong Kong International Airport en route to Japan with boarding passes issued to another persons. Clearly the offence is serious. It affects the comity of nations and the current international situation demands extra vigilance to ensure that airlines and countries are aware of the true identity of international travellers.

After trial a sentence of 18 months imprisonment would be appropriate. I reduced that sentence by one third to reflect the guilty pleas."

5. The approach of Mr Cheung (who appeared before me on behalf of the appellant) to that sentence was as follows :

"1. The judge erred in adopting a starting point of 18 months, this being the sentence for a person charged with possession of a forged travel document used to enter or leave Hong Kong (see R v Yu Wing-wut CACC346/84).

2. The judge erred in failing to consider all the circumstances of the case, namely, to make a distinction between where a false travel document (passport) is used to enter or to leave Hong Kong, and where a false travel document is not used and not intended to be used to either enter or leave Hong Kong ('transit cases') (R v Garcia [1990] 1 HKLR HP 599).

3. In the former situation, the person uses the false travel document to enter or to leave Hong Kong, thereby making a false representation to authorities in Hong Kong, but in the latter, the holder of the false travel document was merely in transit, and he has not used and did not intend to use the false document to leave Hong Kong. As such, no false representation was made to authorities in Hong Kong (see HKSAR v Chu Man HCMA1012/98, HKSAR v Lam Fat HCMA1011/98, HKSAR v Ng Lai-kin HCMA1002/98).

and

4. The Applicant's case is less serious than those cases cited as he was in transit at the time, and he was in possession of an unlawfully obtained boarding pass, not a forged passport."

6. Seeking to respond to each of those matters in turn, Mr Kwok for the respondent has argued as follows :

"(1)(a) The mischief is that the appellant held himself out as being another person by using that person's document to travel from one country to another and, if the true facts were known, he would not have been permitted to do so.

(b) Since the appellant chose to abandon his passport in Hong Kong, the only inference to be drawn is that he, after having landed Japan, would use another passport, to gain entry there. Therefore, the gravamen of present offence is that the appellant used Hong Kong as a 'springboard' to enter Japan illegally. The effect of using another person's boarding pass is that it would prevent airlines and other countries from knowing the true identity and nationality of people entering those countries.

(c) The current state of world affairs requires special vigilance to ensure that airlines and countries are aware of the true identity of international travellers.

and

(d) Accordingly, the appellant's offence can be equated with an offence of possessing a forged travel document for the purposes of leaving Hong Kong. In the case of R v. Yu Wing-wut, CACC346/1984, the court held that 18 months' imprisonment was the appropriate sentence in order 'to preserve comity between nations' and 'to maintain for the benefit of all its citizens the good name of Hong Kong abroad'. The fact that the boarding pass may be genuine and not forged, makes no difference.

(2) and (3)

The appellant entered Hong Kong by way of Lo Wu on 25 January 2003 and he checked in at the Immigration Counter at Chek Lap Kok Airport on 27 January 2003. He had entered Hong Kong; he had stayed in Hong Kong, and then attempted to leave Hong Kong. He was therefore clearly not a transit passenger.

and

(4) Although the appellant neither used a forged travel document nor made a false representation of his identity to the authorities in Hong Kong, he did use another person's travel document and made a false representation of his identity (by presentation of that document) to the airline staff. The boarding pass was used to enable him to leave Hong Kong. Given the present worldwide alert regarding terrorism the use of such documents constitutes a grave offence and the appropriate sentence is one which will 'indicate that the Hong Kong Courts are alive to the dangers of tolerating unauthorized use of travel documents in the present era of worldwide terrorism'.

(R v. Bhagwant Singh-Padda, MA1447/1998)."

7. Mr Kwok produced before me some statistics prepared helpfully by a senior police officer relating to the prevalence of offences of the type to which the appellant pleaded guilty (i.e. offences charged under the Theft Ordinance) and to which prevalence the magistrate very properly made reference.

8. Those statistics demonstrate that between 31 January 2002 and 6 April 2003 no fewer than 34 persons (including the appellant and his co-defendant) have been convicted of offences of fraud, obtaining services by deception or attempting to obtain services by deception involving the misuse of boarding passes issued in the names of other persons. Of those 34 persons 27 (including the appellant and his co-defendant) were from Fujian province on the Mainland. Sentences for such offences (and I shall refer to them as Theft Ordinance offences) have ranged between suspended sentences of two months' imprisonment to immediate sentences of 12 months' imprisonment. Indeed of the 34 persons to whom I have referred only eight (including this appellant and his co-defendant) received a 12-month sentence and each received that sentence within the last six months.

9. Mr Kwok tells me that prior to January 2002 nobody who produced somebody else's boarding pass to airline staff was charged with the Theft Ordinance offences. Now that offences under section 159G are being charged the particulars generally allege that the defendant obtained, or attempted to obtain services from an airline, namely a flight service from Hong Kong to Japan (or wherever), by the deception made to airline staff that he was the person named on the boarding pass.

10. A number of questions arose at the hearing of this appeal as follows :

(a) Is there, in terms of criminality, any real difference when a defendant

(1) presents a false/forged passport to the Immigration authorities rather than presents a genuine boarding pass to the staff of an airline, albeit that that boarding pass was issued in the name of somebody else?;

(2) misrepresents (to the Immigration authorities) that he is the holder of a genuine travel document which, in fact, is not genuine?; and

(3) that he does any of those things whilst he is 'in transit'.

and

(b) Is the sentencer entitled (as Mr Kwok suggests that he is) to infer what a defendant may do in the event that he succeeds in leaving Hong Kong and arrives at an overseas airport and, in drawing such inference, punish that defendant for what he may do? e.g. take possession of another false/forged travel document upon arrival there.

11. For the appellant Mr Cheung made a number of forceful points in addition to those set out in paragraph 5 above. He says that the 'misuse' of a boarding pass (unlike the possession or presentation of a false/forged travel document such as a passport) is, in truth, a 'one off' or wholly singular offence in that once the boarding pass has been used it (unlike a false passport) cannot be used again.

12. He goes on from there to suggest that whilst the statistics of recent offences put forward by Mr Kwok may well be correct, those statistics plainly (with one or two exception) demonstrate sentences which would likely engender in this appellant (by reason of the sentence which was imposed upon him) a real sense of grievance and that, in terms of criminality, it is much less serious to produce to the staff of an airline somebody else's boarding pass than it is to produce to Immigration authorities a false or forged passport or other travel document.

Conclusion

13. As I said in an appeal before me only last week [HKSAR v. Li Xiao Feng, HCMA 286/2003] where that appellant was charged with an offence not of producing a false/forged passport to the Immigration authorities but an offence of making a false representation to such authorities by producing a false/forged Chinese permit which production specifically implied that such referred to the holder of a genuine passport I fail to see any difference in the criminality involved in those offences (which I will call Immigration Ordinance offences) because, in truth, the object of the exercise is precisely the same and either way the representation is made to a Government official that a document is genuine when in fact it is false/forged.

14. Whilst the consequences, in terms of comity and mischief may be the same, there is (or so it seems to me) a quite apparent difference in terms of criminality between that course of conduct and the presentation of somebody else's boarding pass to airline staff.

15. For my part I am in no doubt, despite the arguments of Mr Cheung, that this appellant was not in transit in the sense that that term implies and even if he was I fail to see what difference that would make.

16. I do not accept Mr Kwok's argument based, if I may say so, upon no more than a possibility as to what the appellant might have done upon his arrival in Tokyo. If a magistrate did that he would be sentencing a defendant for an entirely different offence to that with which he had been charged (i.e. the attempted deception in Hong Kong) and he would be sentencing for an anticipated offence in another jurisdiction. Of course the situation may be very different if the deception succeeds beyond being merely an attempt.

17. There undoubtedly have been inconsistencies in sentencing for the 'Immigration Ordinance offences' and plainly from everybody's point of view - not least that of a defendant that is undesirable. I sought to address that difficulty in my judgment in HKSAR v. Li Xiao Feng. No less undesirable is the apparent wide variation or range of sentences imposed for the Theft Ordinance offences involving boarding passes. Hopefully this judgment may provide an indication which will lead to greater consistency in the sentences imposed for these offences.

18. As I have said I now accept - albeit initially I had reservations - that the offence of which the appellant was convicted (particularly given that it was 'an attempt') should be regarded as being somewhat less serious than the 'Immigration Ordinance offences' and, that being so, they should attract a somewhat lower starting point in sentence.

19. In my judgment an appropriate starting point for such an attempted deception offence (and again I stress the word 'attempted') is of the order of 12 months' imprisonment which sentence should be reduced in the light of a plea of guilty to a sentence of eight months.

20. It was for these reasons that I allowed this appeal to the extent which I did and I invite the Director of Legal Aid to bring the matter to the attention of the appellant's co-defendant who has not - so far as I am aware - seen fit to appeal against his sentence.