HKSAR v. Ponniah Viththiyakaran and Another

DCCC 584/2018

[2019] HKDC 209

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 584 OF 2018

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Reasons for Sentence

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Charges

1.D1 pleads guilty to a charge of possession of a forged travel document (1^st Charge).  D1 and D2 plead guilty to a charge of conspiracy to obtain services by deception (2^nd Charge).

Facts

2.In the afternoon on 12/5/2018, immigration officers kept D1 and D2 under observation at Hong Kong International Airport.  D2 obtained from the check-in counter of Air France a stand-by boarding pass in his own name for Flight AF185 to Paris that day (Exhibit P2).  Then he went into a cubicle at a public toilet and passed it through the aperture to D1 in the adjacent cubicle. 

3.Afterwards D2 went to Boarding Gate No. 219 for Flight FD503 to Bangkok.  He produced his Canadian passport and the boarding pass for this flight to an immigration officer upon request.  He was arrested by an immigration officer. 

4.D1 went to Boarding Gate No. 31 for Flight AF185 departing for Paris.  He purported to be D2 and asked for a formal boarding pass to be issued in place of P2 by presenting P2 and a document which looked like a French passport in D2’s name (Exhibit P1) to the staff of Jardine Aviation Services there. His own Sri Lanka passport was found in his underwear upon a body search.  He was arrested by an immigration officer.

5.A forensic scientist confirmed that P1 was a forged passport.  That relates to the 1^st Charge. 

6.D1 and D2 had formed an agreement for D1 to board Flight AF185 to Paris by a stand-by boarding pass issued to D2 by making a false representation to Air France that D2 was boarding Flight AF185 on 12/5/2018.  That relates to the 2^nd Charge. 

Sentencing considerations

7.In HKSAR v Pak Wan Lung CACC 573/1998, the Court of Appeal took a starting point of 27 months for a defendant using a forged passport for entering and leaving Hong Kong, which was in line with an earlier decision in the same court, ie R v Yu Wing-wut CACC 346/1984.  While doing so, the court was aware that 3 magistracy appeals subsequent to Yu Wing-wut had taken 18 months instead without giving any reasons for the departure from the view of the Court of Appeal in Yu Wing-wut. 

8.In HKSAR v Chan Hung Cheong and Another DCCC 46/2011, D1 and D2 used their Hong Kong passports to check in and obtained 2 boarding passes.  They gave the 2 boarding passes to two mainlanders so that the latter could board an air flight in D1’s and D2’s names.  The judge took a starting point of 30 months on the facts. 

9.In HKSAR v He Wenyou CACC 235/2008, the Court of Appeal regarded that in passing the boarding pass to the user, those working for the syndicate to provide the boarding pass were more culpable and deserved a heavier punishment than the user. 

10.In HKSAR v Wang Quanfa and Another DCCC 353/2012, the judge took a starting point of 27 months for the user of the boarding pass and 33 months for the one working for the syndicate to provide the boarding pass for a reward. 

Mitigation

11.D1 is 24 years of age.  He was born in Sri Lanka.  He lived with his siblings and retired parents in a house in Sri Lanka until the present offences.  He was a technical assistant in a telephone company in Sri Lanka.  He lost the job 6 months before he came to Hong Kong en route to France.  In the few hours’ stay in Hong Kong, he was arrested for the present offences.  He claims that two of his brothers had been arrested and tortured by a division of the police in Sri Lanka while detained.  After release they managed to seek and were granted asylum in France.  He was worried about his own safety and thus wanted to join his two brothers in France.  An agent asked for a sum equivalent to HK$50,000 to arrange for his passage to France to start a new life.  He borrowed the money and paid it to the agent.  D2 turned out to be the one to work out the arrangements at Hong Kong International Airport. 

12.Mr. Mui, the solicitor for D1, asks me to reduce the sentence because he will have to serve a jail term in Hong Kong, a place entirely foreign to him.  

13.D2 is 45 years of age.  He was born in Sri Lanka.  After grade 10 in Sri Lanka, he emigrated with his family to Canada.  He is now a Canadian citizen.  His fiancé is in Sri Lanka.  He ran a one-man business in Canada arranging tours since a year ago.  When travelling with his fiancé in Sri Lanka he befriended a person, who later asked him to go to Hong Kong, at the expense of that person, to help someone (ie D1) to go to France.  He was to wait for further instructions at Hong Kong International Airport.  That person promised to introduce customers to him in return.  When in Hong Kong he was instructed to pass the stand-by boarding pass to D1.    He knew nothing about the forged passport. 

Sentencing D1 and D2

14.On the 1^st Charge, which concerns D1 only, I take a starting point of 27 months.  After a one-third discount for the plea of guilty, the sentence is 18 months.   I do not regard anyone deliberately committing a crime in Hong Kong can ask for a reduction in sentence for having to serve a jail term in Hong Kong. 

15.On the 2^nd Charge, which concerns both D1 and D2, I take a starting point of 27 months for D1, the user of the stand-by boarding pass, and 33 months for D2, who provided it for an indirect monetary reward.  After a one-third discount for the plea of guilty, the sentence is 18 months for D1 and 22 months for D2.  

16.As the 1^st and the 2^nd Charges encompass the same overall circumstances on the part of D1, D1’s sentences shall be concurrent.