HKSAR v. WEERASINGHE DON JERARD SRELAL ARUNA KANTHA

HCMA 136/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 136 OF 2002

(ON APPEAL FROM FLCC 52/2002)

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J U D G M E N T

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1. The Appellant is a Sri Lankan man in his late twenties. He arrived in Hong Kong on 19 March 2001 and was given permission to stay until 19 April 2001. While here he lost his Sri Lankan passport, and he bought an Indian passport in the name of Shanmugam Anandan from an unknown man in Tsim Sha Tsui in October 2001. By then, he was already an overstayer. It was his intention to travel to Europe on his Indian passport. But on 4 January this year, he was arrested when he, together with another three men, alighted from a taxi in a suspicious manner at a police roadblock at Sha Tau Kok. He ran from the police but was caught after a chase. By then he had overstayed for about eight and half months.

2. He was charged with two offences. Charge one was of possession of a false instrument, namely the Indian passport, contrary to s. 75 (2) of the Crimes Ordinance, Cap. 200. Charge two was of overstaying contrary to s. 41 of the Immigration Ordinance, Cap. 115.

3. On 14 January this year, before A. B. bin Wahab Esq. in the Magistrate's Court at Fanling, he pleaded guilty to both charges. The Magistrate sentenced him to a total of 13 months' imprisonment. This was by way of a term of 12 months for the possession of a false instrument charge and a consecutive term of one month for the overstaying charge.

4. He now appeals against sentence. His sole ground of appeal is that the sentence is manifestly excessive and wrong. His family circumstances are difficult. He was of previous good character and he did plead guilty.

5. In his Reasons for Sentence, the Magistrate cited three cases, namely the decisions of the Court of Appeal in R v Yu Wing Wut, Crim. App. No. 346 of 1984, 6 September 1984; R v Gafni Zvi [1989] 1 HKLR 167 and R v Wang Ju-wen [1989] 2 HKLR 26.

6. Those three and other cases were referred to by Bewley J in R v Bhagwant Singh-Padda, Mag. Crim. App. No. 1447 of 1988 (18 January 1989) - a case of using an unlawfully obtained travel document contrary to s. 42 of the Immigration Ordinance. At page 5, Bewley J said:-

"Although these cases indicate that there is apparently no tariff sentence for this offence and each case must be judged on its own merits, they seem to fall into four categories:-

1. The passport forgery business, which is the most serious form of the offence.

2. Use of false passports by persons seeking to leave China via Hong Kong.

3. Repeated use of false passports by businessmen travelling in South East Asia.

4. Isolated use of a false passport by persons unconnected with Hong Kong or China."

At page 6, Bewley J said that the fourth category seemed to attract a lesser sentence than the other three. A sentence of 18 months' imprisonment for the s. 42 offence was reduced to 9 months' imprisonment.

7. R v Bhagwant Singh-Padda was cited by Keith J in R v Dai Ming He [1995] HKCU 103 and Woo J in HKSAR v Ahmed Khalil [1999] HKCU 351.

8. In my judgment the present Appellant comes within the fourth category. Each case depends on its own facts, but I think that the decisions of Bewley J, Keith J and Woo J are relevant. All things considered, I allow this appeal by reducing the sentence for possession of a false instrument from 12 months to 6 months. The sentence for overstaying will not be disturbed. So the total sentence comes down from 13 months to 7 months.