THE QUEEN v. BHAGWANT SINGH-PADDA

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H E A D N O T E

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SENTENCE - USING UNLAWFULLY OBTAINED PASSPORT - RESIDENT OF INDIA EN ROUTE TO CANADA - REDUCED FROM 18 MONTHS TO 9 MONTHS.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1447 OF 1988

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J U D G M E N T

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1. The appellant was convicted by Mr Britton at Western Magistrates Court of two offences contrary to s.42 of the immigration Ordinance Cap.115 :(1) Using an unlawfully obtained travel document (2) Making a false representation to an Immigration Officer. He has abandoned his appeal against conviction, but appeals against concurrent sentences of 18 months and 6 months imprisonment.

2. The appellant is an Indian businessman, who was living with is family in Amritsar. He wanted to go Canada, where he hoped to settle. He approached a travel agent, but was told that, with his Indian passport, he would be unable to get a visa. They agreed that the travel agent would procure the requisite travel document in exchange for 30,000 rupees.

3. The appellant and his sister travelled to Delhi on 3rd October. The latter was bound for USA and was in possession of a valid ticket and travel document. At the airport, after passing through Immigration, the travel agent gave the appellant his ticket to HK and a Malaysian passport. He and his sister then boarded a plane for Hong Kong, where it was arranged they would stay overnight. The appellant would receive his ticket to Canada from a colleague of the travel agent.

4. During the flight the appellant examined the Malaysian passport and was disturbed to find that it bore the photograph of another person. Nevertheless, on arrival in Hong Kong, the appellant presented this passport to an Immigration officer together with an Arrival Card, which falsely stated that he was a Malaysian national and had been barn in Selangor. He was detained. His Indian passport was later found in his sister's suitcase.

5. The maximum sentence for these offences, on summary conviction, is 2 years imprisonment and a fine of $20,000.

6. In Sae Tang Somsak v. R CA 964/80, I reduced to 6 months a sentence of 12 months imprisonment imposed on a Thai resident, who had used an unlawfully altered passport to travel between Thailand and Hong Kong.

7. Since that decision, there have been many cases involving possession of forged identity cards, for which the Court of Appeal has decreed that a sentence of 15 months is proper. See Chan Sau Kin and others v. R CA 934/81. The purpose of such a sentence is to deter would-be illegal immigrants from China.

8. Chan Sau Kin was cited by Cons JA (as he them was) in Yu Wing Wut v. R CA 346/84. The appellant in that case had arrived unlawfully from China and was apprehended at Kai Tak Airport when attempting to leave for the Philippines with a genuine British passport, from which the original photograph had been removed and his own substituted.

9. The Court of Appeal accepted that there was force in the argument of counsel for the Crown that, whereas forgery of a Hong Kong Identity Card did not entail the possibility to international repercussions, there was a need to preserve comity between nations and to maintain the good name of Hong Kong abroad where passports were concerned. In that case the court reduced the sentence for possessing a forged passport from 3 years to 18 months imprisonment.

10. The magistrate cited, and considered himself bound by, Chan Wai-chuen v. R MA 820/84, in which the facts were similar to those in Yu Wing Wut, except that the appellant intended to travel to Canada and it was his second offence. He had done the same thing earlier in the year and had been deported from USA to HK, where he had been sentenced to 6 months imprisonment and later repatriated to China. On his second conviction he was sentenced to 15 months imprisonment, the appeal against which was dismissed by Deputy Judge Souyave.

11. Since 1984, however there have been several appeals to the High Court and Court of Appeal concerning false or forged passports.

12. In Surasak Strichairat & Another v. R. CA 124/85, the Court of Appeal dismissed an appeal against sentences of 2½years imprisonment, imposed in the District Court. The appellants were found to be taking part in a forged passport business of a not insubstantial nature.

13. The next appeal was Wong Kwai Pui v. R. MA 796/87, in which the facts were almost identical to those in Yu Wing Wut and in which I upheld the sentence of 18 months

14. Then came Gafni Zvi v. R., on appeal from the District Court, in which sentences totalling 2 years imprisonment had been passed in respect of possession of 1 false Singapore and 5 false Philippine passports by an Israeli businessman living in Hong Kong. The appellant had been arrested leaving Hong Kong for Macau, en route to China, in possession of the false Singapore passport. Counsel urged that, as Israel had no diplomatic relations with China, it was difficult for its citizens to travel there on their own passports. He was keeping the false Philippine passports in case they were needed for future, trips to China.

15. Giving the judgment of the Court of Appeal, allowing the appeal and substituting a sentence of 9 months imprisonment, Silke, V.-P. said at p.5:-

"The trial judge said, and quite rightly, that these are not technical offences. The maximum sentence provided by the legislation is 14 years' imprisonment. While the Applicant did not have these passports for the purpose of forwarding an illegal passport racket nevertheless the possession, and indeed the use, of false passports does affect the comity of nations and the Applicant was involved to the extent that he was a customer of the racketeers.

That having been said we are of the view that the trial judge started at much too high a point in considering sentence in the unusual circumstance's of this case. We agree that custodial sentences are necessary and proper to deter the use of such documents and to punish those who are found guilty of this type of offence. But we emphasise that each case must be judged in the light of its own facts."

16. Finally in September last year, the Court of Appeal refused leave to appeal in Wang Ju Wen v. R., CA272/88 against concurrent sentences of 18 months' imprisonment passed in the District Court for possession of false or unlawfully obtained passports, and consecutive sentences totalling 6 months' imprisonment for using those passports.

17. The appellant was a Taiwan businessman, resident in Hong Kong, who was found to be in possession of two false Malaysian and Philippine passports, which he had used to enter and leave Hong Kong a total of 17 times. He had used them to travel on business to South East Asian countries which either did not accept Taiwanese passports or placed difficulties in the way of their holders.

18. Fuad V.-P., giving the judgment of the Court of Appeal which included silke V.-P., noted that offences against s.42 were prevalent. He went on to say that nothing in Gafni Zvi derogated from the observation in Yu Wing Wut that 18 months was the appropriate sentence for this offence. He concluded:-

"We are firmly of the opinion that the mere fact that a defendant is a businessman who would not be able to do business so conveniently abroad (by reason of what Mr. Corrigan called "bureaucratic delays") unless he used a false passport cannot be regarded as a mitigating factor. Of course, it might be an aggravating factor if it could be established that the passport was used to further a criminal, enterprise."

19. 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.

20. The last category, into which this appellant falls, seems to attract a lesser sentence than the other three. It is nonetheless a serious offence, meriting a prison sentence which will indicate that the Hong Kong courts are alive to the dangers of tolerating unauthorised use of travel documents in the present era of worldwide terrorism.

21. The appeal is allowed and the sentence on the first charge reduced to 9 months.