HKSAR v. Cristian Alberto Cardona Quinchia also known as Daniel Martin Chavez Cano and Chavez Cano Daniel Martin

CACC 106/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 106OF 2016

(ON APPEAL FROM DCCC NO. 155 OF 2016)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.With the leave ofMcWalters JA, granted on 18 November 2016, the appellant, a Colombian, appeals against the total sentence of 3 years’ imprisonment imposed on him by District Judge Woodcock on 13 April 2016 following his pleas of guilty to the following charges: using a forged travel document on 31 October 2015, namely a forged Republic of Guatemala passport for the purpose of Part II of the Immigration Ordinance, contrary to section 42(2)(b) and punishable under section 42(4) of the Immigration Ordinance, Cap. 115 (Charge 1); breach of a deportation order on 31 October 2015, contrary to section 43(1)(a) of the Immigration Ordinance (Charge 2); using a forged travel document on 23 November 2015, namely a forged Republic of Guatemala passport, contrary to section 42(2)(b) and punishable under section 42(4) of the Immigration Ordinance, Cap. 115 (Charge 3) and possession of a dangerous drug on 24 November 2015, namely 1 gramme of cocaine, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (Charge 4). At the hearing, we allowed the appeal in part. We said that we would give our reasons in due course. That, we do now.

2.The judge sentenced the appellant to 16 months’ imprisonment on each of Charges 1 and 2, which sentences she ordered to be served consecutively.  On Charge 3, the appellant was sentenced to 16 months’ imprisonment, which was ordered to be served concurrently with the sentence of imprisonment imposed in respect of Charge 1.  Finally, the judge sentenced the appellant to 8 months’ imprisonment on Charge 4, 4 months of which sentence she ordered to be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.

Reasons for sentence

3.In her reasons for sentence, the judge noted that the appellant was a single 26-year-old man, who had been sentenced to a total of 27 months’ imprisonment in the District Court, having been convicted of two offences of burglary in October 2014.  Further, she observed that after he had completed those sentences of imprisonment the appellant was deported to Colombia on 26 August 2015.

4.In respect of the approach to sentence for the offence of using a forged travel document, namely a passport, the judge acknowledged that she had been referred by the prosecution to the judgment of this Court in HKSAR v Pahila ^[1]. The judge said that she determined that the appropriate starting point for sentence for that offence was 27 months’ imprisonment.

5.Of the offence of breach of a deportation order the judge acknowledged that she had been referred to the judgment of this Court in HKSAR v Cortez Emily Bisoy ^[2]. Having said that she determined that the appropriate starting point to be taken for an offence of breach of a deportation order was 27 months’ imprisonment, the judge said:

“ The Court of Appeal has also said that such sentences for those offences may properly be ordered to be served consecutively, and I have referred myself to HKSAR v Wabhi Tri-Wahyu also known as Wahyu Wabhi Tri, Supri Yatnak and Supriyatnak, CACC 345/2014. The Court of Appeal finds that to make a breach of deportation order sentence consecutive to other sentences imposed for immigration offences appropriate, to reflect the seriousness of making false claims to immigration officers. It means it is not entirely clear who is really admitted into Hong Kong via immigration channels. It also reflects the seriousness of breaching a court order such as a deportation order.”

Starting point

6.The judge stipulated a starting point for sentence for Charges 1, 2 and 3 of 24 months’ imprisonment.  For Charge 4, having acknowledged that the quantity of cocaine was “not a significant amount”, she stipulated a starting point for sentence of 12 months’ imprisonment.

Discount

7.The judge stated that she afforded the appellant a discount of one-third from that taken as a starting point to reflect the appellant’s pleas of guilty.

Totality

8.Then, in the context of considering the totality principle, the judge said that she took into account :

“ …the Court of Appeal’s view that a sentence for a breach of the deportation order should be served consecutively to other immigration offences, in particular, using a false travel document.”

9.In the result, the judge ordered the sentence of 16 months’ imprisonment imposed in respect of Charge 2 be served consecutively to the sentence of 16 months’ imprisonment imposed in respect of Charge 1, namely breach of a deportation order.  Also, the judge ordered that 4 months of the sentence of imprisonment imposed in respect of Charge 4 be served consecutively to the sentence of imprisonment imposed in respect of Charge 1.  Accordingly, the appellant was sentenced to a total of 3 years’ imprisonment.

Grounds of appeal against sentence

10.For the appellant, Mr Percy submitted that the judge was wrong to impose a total sentence of 32 months’ imprisonment, after pleas of guilty, for Charges 1 and 2.  He suggested that in doing so, the judge misinterpreted paragraph 19 of the judgment of Macrae JA, sitting as a single judge of this Court in an application for leave to appeal against sentence in HKSAR  v Wabhi Tri Wahyu ^[3].  Next, he submitted that the judge erred in taking a starting point for sentence of 12 months’ imprisonment for Charge 4.  Finally, he contended that, having regard to all the circumstances, and after considering the totality principle, the total sentence imposed on imprisonment imposed on the appellant was manifestly excessive.

The respondent’s submissions

11.For the respondent, Ms Catherine Ko accepted that the judge had misapplied the judgment of Macrae JA in HKSAR v Wabhi Tri Wahyu.  In that case, District Court Judge Stanley Chan imposed concurrent sentences of 18 months’ imprisonment for an offence of making a false representation to an Immigration officer, contrary to section 42(1)(a) of the Immigration Ordinance and for an offence of breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance.  It was the sentence of 18 months’ imprisonment, imposed in respect of the charge of theft, that was ordered to be served consecutively to the sentences imposed on the other two charges.

12.Ms Ko submitted that the judge was correct in identifying 27 months’ imprisonment as the starting point to be taken for the offence of using a forged travel document for the purpose of Part II of the Immigration Ordinance and for breach of a deportation order.  However she invited the Court to note that, nevertheless the judge had stipulated a starting point for those offences of only 24 months’ imprisonment.  In doing so, the judge was lenient.

13.However, she submitted that, having regard to the appellant’s overall culpability, the total sentence of 3 years’ imprisonment imposed on the appellant, following pleas of guilty, lay in the appropriate range.

14.Ms Ko submitted that the appropriate sentence for the offence of possession of dangerous drugs lay in the range of 12 to 18 months’ imprisonment (HKSAR v Mok Cho Tik)^[4].  She acknowledged that “…does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.”

A consideration of the submissions

15.Mr Percy took no issue with the judge’s stipulation of a starting point for sentence for Charges 1 and 2 of 24 months’ imprisonment.  That is understandable, given that the judge was correct to identify 27 months’ imprisonment as being the usual starting point for those offences.  However, we are satisfied that stipulating the lower sentence as a starting point lay within the discretion of the judge.

16.Most helpfully Ms Ko presented to the Court her extensive research in respect of the Court’s approach in sentencing in respect of offences of breach of a deportation order committed in conjunction with other offences.  Many of those cases concerned the combination of an offence of a breach of deportation order and an offence of remaining in Hong Kong without authority, having landed unlawfully in Hong Kong.  So, for example, in HKSAR v Ta Dinh Son & Another,^[5] this Court was concerned with an application for leave to appeal against sentences imposed on the applicant for attempted theft (Charge 1); remaining in Hong Kong without authority, after having landed unlawfully (Charge 2) and an offence of breach of a deportation order (Charge 3).  District Court Judge Tallentire imposed sentences of 12 months’ imprisonment (Charge 1), 18 months’ imprisonment (Charge 2) and 2 years’ imprisonment (Charge 3) ordering that the sentences of imprisonment imposed in respect of Charges 1 and 2 be served consecutively and that 12 months of the sentence of imprisonment imposed in respect of Charge 3 be served consecutively to the resulting total sentence of imprisonment imposed in respect of Charges 1 and 2.  Accordingly, the total sentence imposed on the applicant was 42 months’ imprisonment.

17.In the judgment of this Court, Stock VP said:^[6]

“ Mr Chan says that the offence of remaining unlawfully in Hong Kong does not add to the culpability constituted by the breach of deportation offence under section 43.

We think that that submission is self-evidently correct and dicta to the same effect are to be found in other judgments, most recently in the judgment of Barnes J in HKSAR v Bui Van Khai [2013] 2 HKLRD 471.”

18.In the result, the Court revisited the issue of sentencing afresh.  The sentence of 12 and 18 months’ imprisonment, imposed in respect of Charges 1 and 2, were unchanged.  Having regard to the fact of the multiple convictions of the applicant for the offence of breach of a deportation order Stock VP said that the appropriate starting point for sentence was 42 months’ imprisonment.  Affording the applicant a discount of one-third, the sentence imposed for Charge 3 was 28 months’ imprisonment.  However, then Stock VP said:^[7]

“ The sentence of 18 months in relation to the second charge ought to have been ordered to run wholly concurrently with the sentence on the third charge. ..

The sentence in respect of the first charge (attempted theft) remains unaltered (12 months) but we order the sentence to run wholly consecutively to the concurrent sentences of 28 months and 18 months’ imprisonment, making a total of 40 months’ imprisonment.”  [Italics added.]

19.In HKSAR v Tran Viet Thanh ^[8]this Court provided guidelines for sentencing on pleas of guilty for the offences of remaining in Hong Kong without authority, having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance; possession of a forged identity card, contrary to section 75(1) of the Crimes Ordinance; and breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance.  In doing so, the Court addressed the issue of whether or not sentences imposed for the offences of unlawfully remaining in Hong Kong and possession of / using a forged identity card ought to be ordered to be served concurrently.  In the judgment of the Court Cheung JA said:^[9]

“ R v Chan Wun Sang ^[10] adopted a concurrent sentence for using a forged identity card and unlawfully remaining.”

20.Cheung JA went on to note that in HKSAR v Wong Ping ^[11], in which those two charges were two of four charges to which the appellant pleaded guilty, this Court ordered:^[12]

“ …the 6-month sentence on possession of identity card to run concurrently with the 15-month sentence on unlawfully remaining. This Court agreed that except where there are special circumstances the sentences for these two offences would normally be concurrent.”

21.In the result, Cheung JA said:^[13]

“ …as apparent from R v Chan Wun Sang and HKSAR v Wong Ping this Court has consistently imposed a concurrent sentence for forged identity card offence and unlawfully remaining in Hong Kong in the absence of exceptional circumstances. The rationale, as stated in R v So Man King, is that the substantial element in sentencing for the offences is the unlawful presence in Hong Kong. The mere production of the identity card when an illegal immigrant was intercepted was not regarded as a special feature which justifies a departure from the concurrent sentence approach.”

22.In the judgment of this Court in HKSAR v Wong Ping, Stuart Moore VP cited with approval passages from the judgment of Beeson JA in HKSAR v Lo Siu Ching ^[14] in which she had identified factors of aggravation in the commission of the offences of using a false travel document, in the context of remaining in Hong Kong without authority, noting that “the successful basis of the appeal was that as the appellant had not used the false travel document to obtain some particular benefit”, in which circumstances “… the magistrate ought to have imposed concurrent sentences.” ^[15]  

23.It is clear that in committing the offence the subject of Charge 1, the appellant gained a benefit, namely by using the forged travel document he was allowed to enter Hong Kong and he was granted permission to stay for one month. He did stay in Hong Kong for more than three weeks.

Possession of dangerous drugs

24.In support of his submission that the judge erred in stipulating a starting point for sentence for possession of 1 gramme of cocaine (Charge 4) Mr Percy relied on the judgment of McMahon J in HKSAR v Lacroix Stephane Pierre.^[16]  In that case the appellant had been sentenced to 4 months’ imprisonment suspended for two years and fined $2,000 on his conviction on his plea of guilty to a charge of possession of 1.57 grammes of cocaine.  Although the appellant’s appeal was dismissed, McMahon J addressed the ambit of the discretion in sentencing for small quantities of dangerous drugs, noting that in the judgment of this Court in HKSAR v Mok Cho Tik, Stock JA had said that the range of sentence for possession of dangerous drugs of between 12 and 18 months’ imprisonment did not exclude the imposition of “…lesser terms for very small quantities where the circumstances so warrant”.  McMahon J said:^[17]

“ In the present case the appellant possessed a relatively small amount of drug. I note however that there have been a number of cases which have adopted a starting point for the possession of small amounts of hard drug at the lower end of the range referred to in Mok Cho Tik : see for example HKSAR v Lai Siu Ming, HCMA238/1999; HKSAR v Leung Moon Wah, HCMA643/1996; HKSAR v Lau Wai Man, HCMA77/1999, and more recently HKSAR v Subba Siwani, HCMA1205 and 1225/2003; HKSAR v Tang Sze Woo, HCMA41/2003 and HKSAR v Cheung Hoi Lan, HCMA93/2003 all of which concerned less than 1 gramme of drug. In my view the magistrate adopted a starting point in the present case which cannot be criticised as too severe, even accepting that the result was to carry the appellant out of the domain of the Rehabilitation of Offenders Ordinance.”

25.Although the judgment does not state it to be the case it is clearly to be inferred that the judge had taken a starting point for sentence of 6 months’ imprisonment.

26.It appears from the interchange between counsel in mitigation that she accepted that the cocaine was for the appellant’s own consumption and that the appellant was not addicted to dangerous drugs.  There was no latent risk of distribution of the drugs to others.  Certainly, although the appellant had been convicted for offences of burglary, he had no criminal convictions in respect of dangerous drugs.  In all the circumstances, we are satisfied that the judge erred in taking a starting point for sentence for Charge 4 of 12 months’ imprisonment.  The appellant’s culpability is appropriately reflected by taking a starting point of 6 months’ imprisonment.  Affording the appellant a one-third discount for his plea of guilty, the sentence that ought to have been imposed on the appellant for that charge was 4 months’ imprisonment.

27.As noted earlier, we are satisfied that the offence subject of Charge 1 is to be viewed as distinct and separate from the breach of the deportation order and, subject to consideration of the principle of totality, the sentence imposed in respect of Charge 1 may properly be ordered to be served consecutively to the sentence imposed in respect of Charge 2.  Similarly, the possession of dangerous drugs is separate and different from the other offences.  The use of a forged passport to unlawfully enter and remain in Hong Kong was an egregious breach of the deportation order.  The appellant re-entered Hong Kong within 2 months of his deportation.  Moreover, whilst in Hong Kong the appellant committed the offence of possession of the cocaine.  We are satisfied that, albeit for the wrong reasons, the judge was correct to order that the sentence of 16 months’ imprisonment imposed in respect of Charge 2 be served consecutively to the sentence imposed in respect of Charge 1.  We are satisfied that it is appropriate that part of the sentence imposed in respect of Charge 4 be ordered to be served consecutively to the sentence imposed in respect of Charge 1.

Conclusion

28.For the reasons we have given, we allowed the appeal against sentence and quashed the sentence of 8 months’ imprisonment imposed in respect of Charge 4 and, in its place, we substituted a sentence of 4 months’ imprisonment.  We ordered that 2 months of that sentence of imprisonment be served consecutively to the sentence imposed in respect of Charge 1.  We made no other orders.  Accordingly, the total sentence imposed on the appellant is 34 months’ imprisonment.

Ms Catherine Ko, SADPP, of the Department of Justice, for the respondent

Mr Percy Duncan Charles Hilary, instructed by Tsang, Chan & Woo, assigned by Director of Legal Aid, for the appellant

[1] HKSAR v Pahila [2007] 1 HKLRD 410.

[2] HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762.

[3] HKSAR v Wabhi Tri Wahyu (CACC 345/2014; unreported, 6 August 2015).

[4] HKSAR v Mok Cho Tik (CACC 165/2000; unreported, 7 February 2001 at page 8).

[5] HKSAR v Ta Dinh Son & Another (CACC 348/2013; unreported, 9 January 2014).

[6] HKSAR v Ta Dinh Son & Another, paragraphs 9 and 10.

[7] HKSAR v Ta Dinh Son & Another, paragraphs 21 and 22.

[8] HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903.

[9] HKSAR v Tran Viet Thanh, paragraph 12.3.

[10] R v Chan Wun Sang [1993] 1 HKCLR 46.

[11] HKSAR v Wong Ping (CACC 86/2005; unreported, 9 June 2005).

[12] HKSAR v Tran Viet Thanh, paragraph 12.3(4).

[13] HKSAR v Tran Viet Thanh, paragraph 17.

[14] HKSAR v Lo Siu Ching (HCMA 1131/2001; unreported, 10 January 2002).

[15] HKSAR v Lo Siu Ching, paragraph 7.

[16] HKSAR v Lacroix Stephane Pierre (HCMA 612/2009; unreported, 8 December 2009).

[17] HKSAR v Lacroix Stephane Pierre, paragraph 7.