The Queen v. Babasa Jose R.

HCMA000759/1991

MA 759 of 1991
(Criminal)

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H E A D N O T E

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SENTENCE - UNLAWFULLY OBTAINED TRAVEL DOCUMENT - UNLAWFUL POSSESSION OF STOLEN CREDIT CARDS - MAGISTRATE CORRECT TO INCREASE SENTENCE ON FIRST CHARGE IN LIGHT OF APPELLANT'S CONDUCT.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 759 OF 1991

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BETWEEN

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Coram: Hon Bewley, J. in Court

Date of hearing: 27 December 1991

Date of delivery of judgment: 21 January 1992

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J U D G M E N T

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1. The appellant pleaded guilty in San Po Kong Magistrates Court to possession of an unlawfully obtained travel document (Charge A) and to unlawful possession of 14 credit cards (Charge B). He was sentenced by Mr McKee to consecutive sentences of 18 and 2 months on the respective charges.

2. The appellant arrived in Hong Kong from Manila carrying two passports, one in his own name and one in the name of another person. He said he had applied for the latter in order to obtain a Japanese visa.

3. 11 of the cards were confirmed as having been stolen overseas. The appellant said he had been asked to take them to Hong Kong for a reward of US$1,000.

4. The appellant is a jewellery salesman in Manila and is married with one son. He has no previous convictions.

5. In his Statement of Findings, the magistrate said :

"It can hardly be ignored also that on his arrival in Hong Kong the Appellant was in possession of 14 credit cards in various names. I found I could infer that he had them in his possession for illegal purposes although I accepted that there was no evidence that he had used there. I certainly did not believe the suggestion in mitigation that the cards were to be sent back to the persons named in the cards."

6. The maximum sentence on the first charge is two years and on the second charge three months.

7. In R v. Ahmed Parves MA 181 of 1991 I said this:

"The Court of Appeal has indicated in two fairly recent cases that 13 months imprisonment is appropriate for this offence In R v. Wong Ju Wen [1989] 2 HKLR 26, the applicant was in possession of a genuine Malaysian passport in another person's name, which he had used on 16 occasions to enter or leave Hong Kong. He was also in possession of a Philippine passport in another's name, which he had used to enter Hong Kong. He had used them to facilitate his business travel commitments. His sentence was reduced from 24 months to 18 months.

In R v. Lie Kwet Tjoen CA 474 of 1989 an Indonesian passport holder in transit from China to Singapore was found to have in his luggage a forged Thai passport and four forged dies. The appellant's explanation was that he was trying to avoid payment of Indonesian departure tax. His sentence was reduced from three years to two years, of which six months was in respect of the forged die offences.

However both these cases were more serious than the present appeal. Each involved an element of repetition of the offences by busienssmen travelling regularly in the area. This was a one-off infringement by a young man trying to get to USA. It thus falls into the least serious of the four categories adumbrated by me in R v. Bhagwant Singh-padda MA 1447 of 1988.

The appeal is allowed and the sentence reduced to nine months."

8. Mr Chan, for the appellant, submits that this case also concerns the isolated use of a false passport by a person unconnected with Hong Kong or China and therefore also falls into the fourth category of Singh-padda.

9. He argues that the appellant has been sentenced on the second charge in respect of the credit cards and that the magistrate was wrong to take this aspect of the case into account when considering the sentence on the first charge.

10. I do not agree. A sentencer should consider the culpability of the enterprise as a whole. Clearly the fraudulent use of the credit cards was the reason for the appellant's journey. His possession of the credit cards in the circumstances was an aggravating factor, which the magistrate was right to consider. The overall sentence is a proper one. The appeal is dismissed.

Representation:

Mr Lee, Crown Counsel, for Crown

Mr Chan, instructed by D.L.A., for appellant