HKSAR v. Serradj, Kamel

HCMA 648/2017

[2018] HKCFI 1023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 648 OF 2017

(ON APPEAL FROM STCC 4300 OF 2017)

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BETWEEN

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J U D G M E N T

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Background

1.The Appellant, Serradj Kamel also known as Melab Belkacem, an Algerian national aged 53, appeared before Mr Joseph To, Ag Principal Magistrate (“Magistrate”) and pleaded guilty to the following charges:

(1)   Charges 1 and 2: “Making a false representation to an Immigration Officer lawfully acting under or in the execution of Part II of the Immigration Ordinance”, contrary to section 42(1)(a) of the Immigration Ordinance, Cap 115; and

(2)   Charge 3: “Using a false instrument”, contrary to section 73 of the Crimes Ordinance, Cap 200.

2.For Charges 1 and 2, the Magistrate sentenced the Appellant to 10 months’ imprisonment for each offence; for Charge 3, the Magistrate sentenced the Appellant to 15 months’ imprisonment.

3.The Magistrate ordered all the sentences to run concurrently, the total sentence was 15 months’ imprisonment.

4.The Appellant now appeals against his sentence.

5.The Appellant was represented by counsel instructed by the Duty Lawyer Service in the court below.  On appeal, he is represented by Mr James Tze of counsel, instructed by Legal Aid Department.

The Facts

6.The Magistrate summarizes the facts succinctly in paragraph 2 of his “Reasons for Sentence” (page 13 of the Appeal Bundle):

“The facts are as follows. On 4 July 2017, the defendant presented himself for departure clearance at Shenzhen Bay Immigration Control Point and showed an Immigration Officer a suspected forged French Passport bearing a forged Hong Kong Immigration Arrival Stamp impression dated 27 June 2017 (the first Charge). The defendant was stopped for enquiry. He told an Immigration Officer that he had entered Hong Kong at the Hong Kong International Airport on 27 June 2017; however, the Immigration Department could find no records to that effect (the second charge). The stamp impression in question was subsequently confirmed to be forged (the third charge).”

Antecedent and Mitigation

7.The Magistrate was told the Appellant had been convicted of theft in 2016 and was sentenced to three months’ imprisonment.

8.In mitigation, counsel who then represented the Appellant (not Mr Tze), told the Magistrate that after the Appellant was discharged from prison, he was put on immigration recognizance to await his removal from Hong Kong.  The Appellant only spoke French and no other language.  There was no interpreter to assist the Appellant when the notice of removal was served on him.  The Appellant thought the immigration authorities would contact him at his residential address later.  When no immigration officers showed up, and there came a point when the Appellant thought that he had been staying in Hong Kong for too long, he procured the forged stamp to facilitate his exit from Hong Kong to the mainland where, to the Appellant’s knowledge, the Algerian government was represented.  It was the Appellant’s intention to seek assistance at the Algerian General on the mainland so that he could return to his home country.

The Magistrate’s Reasons for Sentence

9.The Magistrate noted from the facts admitted by the Appellant (Pages 7 - 8 of the Appeal Bundle) the Appellant was referred to the Immigration Department for repatriation formalities after his release from prison, the Magistrate came to the conclusion that the Appellant was in the course of escaping from Hong Kong to the mainland to avoid being sent back to Algeria (paragraph 4 of the Reasons for Sentence, page 13 of the Appeal Bundle).

10.For Charges 1 and 2, the Magistrate noted that as the misrepresentations in question do not go towards the Appellant’s identity, a starting point below 18 months’ imprisonment should be taken (cf HKSAR v Yim Lee Kuen, HCMA 1187/2002).  The Magistrate took into consideration the fact that the Appellant had acted to defeat the Immigration Department’s purpose of removing him from Hong Kong by the usual and regular repatriation procedure. The Magistrate saw as appropriate a starting point of 15 months’ imprisonment for each of Charges 1 and 2.  He gave one third reduction for the Appellant’s guilty pleas and sentenced the Appellant to 10 months’ imprisonment for each of Charges 1 and 2.

11.As for Charge 3, the Magistrate noted that the Appellant had used an Algerian Passport to enter Hong Kong in the past but in the present case, he was found to be using a suspected forged French Passport with a forged arrival stamp.  Before sentence, the Magistrate sought confirmation from the prosecution whether the usual sentence should have been 15 months’ imprisonment on a guilty plea for Charge 3, to which the prosecuting officer of the Immigration Department replied in the affirmative. Defence counsel did not take issue with that.  The Magistrate eventually sentenced the Appellant to 15 months’ imprisonment for Charge 3 (see paragraph 6 of the Reasons for Sentence, page 14 of the Appeal Bundle and the transcript of proceedings, page 23 of the Appeal Bundle, Letters P - Q).

12.The Magistrate ordered all sentences to run concurrently as the three offences arose out of the same incident.

13.The Magistrate revisits the sentence of 15 months’ imprisonment he passed for Charge 3 in paragraph 6 of the Reasons for Sentence:

“… On reconsideration, this must have been incorrect. It was alleged in the third charge that the false instrument was the stamp, rather than the passport. On reflection, the proper starting point for the third charge should in all the circumstances also have been 15 month’s imprisonment, to be reduced to 10 months on the defendant’s guilty plea. To that extent, the sentence for the third charge was in error.”

The Grounds of Appeal

14.Mr Tze, counsel for the Appellant, argues two grounds:

(1)   The 15 months’ imprisonment on Charge 3 is manifestly excessive.  The Magistrate failed to appreciate that the false instrument in Charge 3 was the stamp rather than the passport.  The Magistrate now accepts that the proper starting point for Charge 3 should be 15 months’ imprisonment and the sentence on a plea should be 10 months’ imprisonment.

(2)   In all the circumstances, the sentence is manifestly excessive.

15.Mr Tze cites HKSAR v Li Xiao Feng, HCMA 286/2003 and HKSAR v Lin Peiluan, HCMA 373/2003 as the authorities for his submissions that there should not be any distinction between offences of using a false travel document and offences of making false representation relating to such offences.  He cites HKSAR v Bodomo, Marissa Flores, HCMA 343/2005 and summits that the starting point for immigration offences ranges from 12 to 28 months

16.Mr Tze submits that the starting point of 22.5 months and the final sentence of 15 months’ imprisonment on Charge 3 is manifestly excessive.

17.Mr Tze submits it is trite law that an offender must only be sentenced only for those offences of which he has been found guilty, or which he has admitted (Archbold Hong Kong 2018 at 5-1).  The Appellant pleaded guilty to Charge 3 and admitted the Brief Facts which only stated that the Arrival Stamp was forged and not the French Passport.

18.Mr Tze submits that all along the prosecution knew fully, and so did the Magistrate, that the Appellant is known as SERRADJ, KAMEL, also known as MELAB, BELKACEM.  There is no evidence that the name or the alias of the Appellant are/is false; and this is not the basis of the prosecution that the Appellant had used false names in the passports.

19.Mr Tze submits that the Magistrate fully understood the motive of the Appellant in committing the offences, the Magistrate said in his oral reasons that “It appears to the court probable that that you were trying to avoid being returned to your home country” (page 23T - V of the Appeal Bundle) and at paragraph 4 of the Reasons for Sentence that “In sentencing the defendant, the court concludes that he was in the course if escaping from Hong Kong to the mainland to avoid being returned to Algeria.”

The Respondent’s Position

20.The Respondent submits that the sentence is in order and the appeal against should be dismissed.

21.The Respondent submits that the facts in the Brief Facts of the Case (“Brief Facts”) at pages 7 - 8 of the Appeal Bundle show that the Appellant was identified as “Male, SERRADI, KAMEL, also known as MELAB, BELKACEM, Algerian, aged 53 years old” and he used two different travel documents with two different names.

22.Mr Daryanani for the Respondent submits that the Magistrate, at the time of sentencing, did not understand the motive of the Appellant’s committing Charges 1 - 3.  He cites the parts from the transcript of the mitigation and reasons for sentence given at the time:

(1)   “Court: Right, I-- it’s a little difficult to understand why your client did what he did on the day of – in question.  It appears that he must have procured the forged stamp in order to represent to the Immigration officer that he had arrived in Hong Kong validly…” (page 17J - K of the Appeal Bundle).

(2)   “Court: That’s is even more difficult to understand.  It appears that, after the legal proceedings, in paragraph 2, …” (page 18 O - P of the Appeal Bundle).

(3)   “Court: …but that’s contrary to the facts as admitted by this defendant himself.  On 11 November 2016, he was referred to the Immigration Department for the purpose of being repatriated back to Algeria.  I don’t understand why he engaged himself in this criminal conduct in order to leave Hong Kong but, anyway, proceed with the balance of your mitigation.” (page 22 E - G of the Appeal Bundle).

(4)   “Court: Defendant, making false representation to an Immigration officer in Hong Kong is very serious criminal offence.  In your case, the authorities have decided to assist you to return to your home country in November 2016.  For a reason that is still not apparent to this court, you procured a forged arrival stamp on the passport in order to leave Hong Kong to the mainland.  It appears to the court probable that you were trying to avoid being returned to your home country.” (page 23 R - U of the Appeal Bundle).

23.The Respondent submits the following facts can be proved and deduced, based on the available information at the sentencing stage:

(1)   The Appellant is known by two different names.

(2)   He used an Algerian passport to enter Hong Kong and a French passport to attempt to leave Hong Kong.

(3)   An immigration checking was conducted using the details of the French passport and there was no record to show that the Appellant did enter Hong Kong.  Therefore it can already be deduced the Algerian passport (a) would have another name to the French passport; and (b) does not contain the alias MELAB, BELKACEM, i.e. the name in the French passport.

(4)   It can be seen from the criminal record (page 15 of the Appeal Bundle) that it only contains the name SERRADJ KAMEL but not the alias MELAB, BELKACEM, the name in the French passport.

(5)   Furthermore the French Passport was forfeited. If it was genuine arguably it should be returned to the Appellant after all the legal proceedings or to the French consulate as it should belong to the French Consulate.

Further Information

24.The Respondent seeks leave to provide the following additional information to the Court so that the case can be better understood, given the difficulty of the Magistrate in understanding the motive of the Appellant.  The Respondent submits that the Magistrate was not fully informed of the background.

25.The Respondent concedes the additional information was known to the Immigration Department, there is no arguable basis for an application to adduce additional evidence under section 118(1)(b) of the Magistrates Ordinance, Cap 227.

26.The Respondent seeks to adduce the following additional information:

(1)   The Appellant used the name SERRADJ KAMEL to enter Hong Kong.

(2)   The recognizance of the Appellant is in the name of SERRADJ KAMEL.

(3)   The criminal record of the Appellant has the name of SERRADJ KAMEL.

(4)   The French passport of the Appellant is also forged.  It has a different name and date of birth.  A statement of the Forensic Scientist of the Government Laboratory dated 19 July 2017 s attached.

(5)   The information as to the name, nationality, the date of birth and the passport number on the Algerian passport and the French passport are totally different.

27.Mr Tze opposes the Respondent’s application for leave to provide the abovementioned additional information on the grounds that (i) the information was not in the Brief Facts admitted by the Appellant; (ii) the prosecution knew about the additional information in the court below; (iii) it was the decision of the prosecution not to use the additional information at the sentencing stage; and (iv) the Appellant was deprived of the opportunity to challenge the same.

28.In paragraphs 38 - 40 of the Respondent’s submissions titled “Request for consideration in this appeal of aggravating factors present at the sentencing hearing but not considered by the learned Acting Principal Magistrate”, the Respondent submits that the following facts were present in the sentencing hearing but were not considered by the Magistrate:

(1)   From the Brief Facts, it can be seen that the Appellant has two names.

(2)   The Appellant presented a suspected French passport for departure at Shenzhen Bay Control Point on 14 July 2017.

(3)   No corresponding arrival record in relation to the Appellant could be retrieved.

(4)   Had the name on the Algerian passport been on the French passport or the name on the French passport been in the Algerian passport then the name of the Appellant would have been identified by the Immigration Officer at the Shenzhen Bay Control Point.

(5)   Therefore an irresistible inference can be relied on the appeal that the name on the French passport is not the same as the one on the Algerian passport.

(6)   Therefore an irresistible inference can be drawn on the facts before the Magistrate that the motive for the Appellant to use the French passport to enter Shenzhen was to avoid detection of his criminal record and possible non-entry to Shenzhen.  Motive is a factor that can be considered in sentence (Wong Chi Fung & Ors v Secretary for Justice [2018] 2 HKC paragraph 64).  Further by using the French passport, the Appellant’s previous identity in Hong Kong and criminal record will be harder to detect.

(7)   Had the Appellant succeeded in leaving Hong Kong using the French passport there would have been no record in Hong Kong of his departure.  Given that the Appellant was found missing, it will cause international criticism of Hong Kong Government in her dealing of this Algerian national.  The Algerian may also seek information about the missing Appellant as he is supposed to be deported there.  The fact that the Appellant tried to leave Hong Kong is a very important aggravating factor.

(8)   The Appellant had two separate and distinct identities, he could have hidden his criminal record from the mainland authorities.

(9)   The Magistrate found in paragraph 4 of the Reasons for Sentence (page 13 of the Appeal Bundle) that the Appellant was in the course of escaping from Hong Kong to the mainland to avoid being returned to Algeria.

(10)   In the present case, not only a false oral representation was used, a Hong Kong Immigration Arrival Stamp was used.

29.In relation to the comments made by the Magistrate in paragraph 6 of the Reasons for Sentence, ie, that upon reconsideration the sentence of 15 months’ imprisonment after plea for Charge 3 was incorrect and the proper starting point should have been 15 months for Charge 3 and the sentence should have been 10 months on a plea, Mr Daryanani submits that:

(1)   Had the Magistrate noticed the aforesaid aggravating factors identified by the Respondent, he may not have made those comments.

(2)   In any event those comments are not based on any specific error he made.  The Magistrate is now functus officio and therefore cannot correct his sentence.

(3)   The comments are not based on any specific case authority brought to the Magistrate’s attention at the time of sentencing, which if brought to his attention would have influenced his decision.  The Magistrate has simply re-assessed the criminality of the case and came to a different conclusion.

(4)   A review of the sentencing cases in this area shows that there is a wide discretion in assessing culpability.  Deputy High Court Judge Longley said in paragraph 9 in HKSAR v Hazrat Rahman, HCMA 872/2006 that “There is no automatic tariff for this sort of offence.”  In Archbold Hong Kong 2018 at 5-550 it states that for the offence of using a forged travel document, the starting point is 27 months’ imprisonment.  Bearing in mind the aggravating factors and the totality principle, given the Appellant made false representations to the officer at Immigration Clearance and the Immigration at the secondary examination the sentence after plea of 15 months is in order.

(5)   The correct approach for an appeal against sentence is as stated by V Bokhary J at paragraph 6 of HKSAR v Warniati, HCMA 137/2005 and Line J at paragraph 9 of HKSAR v Baljit Singh, HCMA 98/2014.

(6)   Paragraph 6 of Warniati reads:

“In an appeal against sentence under section 113 of the Magistrates Ordinance, Cap. 227, the power and duty of the High Court is, while showing proper respect for what the sentencer does within his or her sentencing discretion, ultimately to do what is just.  That would be the implication of any appeal at large, appeals like this being of that nature. Moreover it is expressly so provided by section 119(1)(d) of the Magistrates Ordinance in which the word “just” is experssly used.”

(7)   Paragraph 9 of Baljit Singh reads:

“My approach to these matters is that this is a rehearing. It is an appeal from summary justice to a judge and, as such, it is a rehearing of the case and I listen to the facts and sentence in the way that I believe those facts justify. It is a question, in my view, of judging the case. It is not a question of judging the magistrate or the sentence he passed to see whether it is excessive.”

(8)   In HKSAR v LI Xiao-feng, HCMA 286/2003, one of the authorities relied upon by the Appellant, Jackson J clearly drew a distinction of persons making a false representation with previous convictions.  Jackson J said at paragraph 10:

“The argument which Mr Lo derives from the majority of those magistrates’ appeal decisions is that a starting point of 15 months’ imprisonment for offences of making false representations to immigration officials (by those who have no previous convictions) is excessive.”

(9)   In this case the Appellant had a previous record.

(10)   At paragraph 14 Jackson J also questioned the appropriateness of the distinction that there should be a distinction between the starting point of (i) making a false representation to an immigration officer and (ii) possession of a false document.  The case LI Xiao-feng did not concern a false entry stamp, therefore it is strictly speaking not authority for the proposition that using a false Hong Kong Immigration Stamp would merit a starting point of 15 months’ imprisonment.

(11)   In HKSAR v Bodomo, Marissa Flores, HCMA 343/2005, one of the authorities relied upon by the Appellant, DHCJ To (as To J then was) said at paragraph 18 of the judgment:

“I would agree with such an assessment of culpability. The tariff of 15 months’ imprisonment is appropriate for an offender who possessed or used a forged travel document as the offence involves an international dimension and concerns comity of nations or for an offender whose entry into Hong Kong would adversely affect our local employment market and social conditions.”

(12)   The tariff of 15 months’ imprisonment is for a plea of guilty.  The false Hong Kong Immigration Stamp would affect the comity of nations as wherever the Appellant uses the French Passport to travel, the Immigration officers of that country would be deceived by the false Hong Kong Immigration Stamp.

Discussions

The Additional Information

30.Mr Daryanani makes it clear that even with the provision of the additional information, this appeal should be conducted in the basis of the facts admitted by the Appellant in the court below.  I have considered the submissions of Mr Daryanani and Mr Tze.  In my judgment, it is in the interest of justice that this court should have the true picture of the whole matter.  Mr Tze argues that the Appellant does not have the opportunity to challenge the additional information.  In my judgment, the Appellant is free to challenge the additional information, but Mr Tze has made no such application to provide information to rebut the additional information.  In my judgment, no prejudice will be caused to the Appellant as the Respondent is not asking this court to judge this appeal on the basis of the additional information.  For the reasons given, I grant leave to the Respondent to adduce further information.  The additional information will not be used as the factual basis to replace or supplement the Brief Facts that the Appellant admitted in the court below.

The Merits of the Appeal

31.I agree with the Respondent that the correct approach is as stated in the authorities Baljit Singh and Warniati. In an appeal against sentence under section 113 of the Magistrates Ordinance, the power of the appeal court is ultimately to do what is just.  The appeal being a rehearing in nature, the judge hearing the appeal has to consider the facts and the sentence in the way the judge believes those facts justify.

32.Ground 1: Whether the 15 months’ imprisonment for Charge 3 is manifestly excessive.

33.From the facts admitted by the Appellant and the information available to the Magistrate at the sentencing stage, the following facts can be proved and deduced:

(1)   The Appellant is known by two different names, Serradj, Kamel (as stated in his Criminal Record) and Malab, Belkacem.

(2)   Paragraph 2 refers to the Appellant’s entry to Hong Kong on the strength of his Algerian Passport on 30 August 2016 and his arrest and the subsequent legal proceedings in Hong Kong, which obviously refers to the theft case in 2016 for which he was sentenced to 3 months’ imprisonment.

(3)   Given that the Criminal record shows only the name of Serradj, Kamel, that must be the only name that appears in the Algerian Passport of the Appellant.  I have examined the photocopy of the suspected forged French Passport, it has the name Melab, Belkacem, but not the name Serradj, Kamel.

(4)   It follows from the above analysis that in 2016, the Appellant entered Hong Kong with the Algerian Passport which bore the name Serradj Kamel.  He was convicted of theft and in Hong Kong, and Serradj Kamel was the identity he used when he appeared in court for the theft case.  When the Appellant attempted to enter Shenzhen via Shenzhen Bay Control Point, he used a suspected forged French passport which bears the name Malab, Belkacem on which a forged Hong Kong Immigration Stamp was affixed.

(5)   The Magistrate was right to conclude that the Appellant was in the course of escaping from Hong Kong to Shenzhen to avoid being returned to Algeria.

(6)   The double identities in the Algerian Passport and the suspected forged French Passport on which a forged Hong Kong Immigration Stamp was affixed made this case a serious case of using a false instrument.

34.The sentencing authorities show that there is a wide discretion in assessing culpability.  As DHCJ Longley said in paragraph 9 of HKSAR v Hazrat Rahman (HCMA 872/2006), “There is no automatic tariff for this sort of offence.  The circumstances of each case must be looked at.”  It should be noted that Hazrat Rahman concerned a charge of possession of false travel document, contrary to section 42(2)(c)(i) of the Immigration Ordinance, but the observation made by DHCJ Longley applies equally to cases of using a false instrument involving forged travel documents and forged immigration stamps.

35.In Archbold Hong Kong 2018 at 5-550 it states that:

“The starting point for using a forged travel document is 27 months’ imprisonment: HKSAR v Rakesh Kumar Sthapak [2005] 1 HKLRD 643. See also HKSAR v Pahila [2007] 1 HKLRD 410. The degree of culpability of the offence of possessing a false instrument will depend on the motive for and the purpose of possessing the instrument as well as the nature and function of the instrument. An offence of possessing a false passport, travel document or identity document is more serious than an offence of possessing a false visa, which merely allows the visa holder to enter the country in question. The starting point for an offence of possessing a false passport, travel document or identity document is 27 months’ imprisonment. The appropriate starting point for an offence of possessing a false visa is 12 months’ imprisonment: HKSAR v Guo Fuan [2005] 4 HKLRD 279; HKSAR v Hazrat Rahman (unrep., HCMA 872/2006).”

36.Just as possessing a false passport, travel document or identity document should attract a higher starting point than possessing a false visa, ie, 27 months’ as opposed to 12 months’ imprisonment, the starting point for using a false passport, travel document or identity document should attract a higher starting point than using a false visa.  In the present case, a false Hong Kong Immigration Stamp was used on a suspected forged French Passport and it was the false Hong Kong Immigration Stamp which formed the subject matter of Charge 3. The aggravating features in this case call for a starting point higher than 12 months’ imprisonment.  The use of the false Immigration Stamp to enter Shenzhen had a cross-broader dimension.  The Appellant was a man using double identities and was trying to avoid being returned to Algeria.  I would not attach too much weight to the Appellant’s conviction for theft in 2016, given that it was of a different nature.  I do not consider the fact that the Appellant had made false representations orally (Charges 1 and 2) apart from using the false Hong Kong Immigration Stamp (Charge 3) counts as an aggravating factor, which is more appropriate be considered when the totality is assessed.

37.Had the prosecution chosen to make the forged French Passport the subject matter of complaint for Charge 3, the appropriate starting point would have been at least 27 months’ imprisonment, given the aggravating features present in this case.  For reasons best known to the Immigration Department, the false Hong Kong Immigration Stamp was made the subject matter of complaint for Charge 3 when it was known to the Immigration Department the passport on which the false stamp was affixed was also a forged passport.  The sentencing court had no choice but to sentence the offender on the charge as laid, and the facts as presented by the prosecution.

38.In my judgment, the starting point of 22 ½ months taken by the Magistrate for Charge 3 was much too high, bearing in mind the usual starting point taken for an offence of possessing a false visa is 12 months.  With the aforesaid aggravating features in mind, for Charge 3, a starting point of 15 months’ imprisonment is appropriate.  On a plea of guilty, the sentence should be 10 months’ imprisonment.  I agree with the Magistrate who, with admirable fairness, accepted in his Reasons for Sentence that “On reflection, the proper starting point for the third charge should in all the circumstances also have been 15 months’ imprisonment, to be reduced to 10 months on the defendant guilty plea.  To that extent, the sentence for the third charge was in error.”

39.The Magistrate was also right to order the sentences for the three charges to run concurrently as they arose out of the same incident.

40.For the reasons given, I allow the appeal to the extent that the sentence of 15 months’ imprisonment for Charge 3 is reduced to 10 months’ imprisonment.  The sentences for Charges 1 and 2 and the other that the sentences for all three charges are to run concurrently are not disturbed.

Mr Tze, James YK, instructed by Legal Aid Department, for the appellant

Mr Prakash Lachmandas Daryanani, SPP of Department of Justice, for the respondent