HKSAR v. Hazrat Rahman

HCMA 872/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 872OF 2006

(ON APPEAL FROM STCC 4783 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 8 December 2006

Date of Judgment : 8 December 2006

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J U D G M E N T

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1.The appellant appeals against the sentence of 18 months’ imprisonment imposed upon him after trial by Mr Thomas Tsang on a charge of possession of false travel documents, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap.115.

2.The travel documents concerned were three forged British passports, each in a different name found in the appellant’s luggage when he arrived in Hong Kong on a flight from London via Zurich on 9^th May this year.

3.The appellant’s evidence at the trial was that he was bringing the bag in question to Hong Kong for a friend and had been asked to deliver it to the friend’s brother at Hong Kong Airport after he arrived.  He had simply been told that the bag contained gifts and had no idea that it contained three forged British passports.  The magistrate disbelieved this account and found that the appellant knew that he was carrying the three forged passports and knew that they were forged.

4.The appellant originally lodged notices of appeal both against conviction and sentence, but on 22^nd November this year he notified the court that he was abandoning his appeal against conviction.

5.In his perfected grounds of appeal, the appellant referred to the magistrate’s remarks that the customary range of sentence for simple possession of a forged travel document was between 6 months’ and 18 months’ imprisonment.

6.The appellant complained that the magistrate had adopted the highest point of what he had said was the customary range of sentence, i.e. 18 months, but had failed to give any deduction for the appellant’s age (68 years), his prior good character, the fact that the chances of his reoffending were low and that the present offence was an isolated incident.

7.It is important to look at what the magistrate actually said.  He said that the customary range of sentence for simple possession was between 6 months and 18 months.  But he had earlier said that in the case of the appellant it was a not a case of simple possession of a travel document by someone for his own personal use.  He had said that the appellant’s offence was very serious.

8.The offence of possession of a false travel document is a serious offence with a maximum term of imprisonment of 14 years.  The gravity of this offence is that it deprives the immigration authorities of the countries where they are used of knowing the true identity of the person they are permitting to enter their territory.

9.There is no automatic tariff for this sort of offence.  The circumstances of each case must be looked at.  The courts have upheld sentences of 18 months’ imprisonment for this offence where only one forged passport was involved and where the defendant pleaded guilty.  (See R v Wong Kwai-pui MA796 of 1987 and R v YU Wing-kut MA346 of 1984.)

10.In this case, not only did the defendant plead not guilty, but three forged passports were involved all bearing the photographs of different people, none of whom was the defendant.  One can only assume that they were being brought into Hong Kong and that at some stage would have been given to those whose photographs appeared on the documents.

11.They were not, therefore, passports for the appellant’s own use.  He was trafficking in them for the benefit of others.

12.The magistrate did not specify the starting point he adopted.  It would have been better if he had done so.  He specifically referred to the matters that he took into account, in particular the appellant’s old age and previous good character.

13.It is clear that he must have given a generous discount to the appellant to reflect the matters urged in mitigation in particular his age and clear record.

14.In the circumstances, the sentence was perfectly proper.  Indeed, it was a lenient one.

15.Today, the appellant has asked for a letter from his wife to be read to the court.  It refers to the difficulties his family are facing while he is imprisoned in Hong Kong.  There is nothing in that letter that warrants a reduction in sentence.

16.I dismiss the appeal.

Ms Winsome Chan, Senior Government Counsel of the Department of Justice, for the Respondent

Mr Hazrat Rahman, Appellant in person