HKSAR v. Ozcetin Nurdan

HCMA111/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 111 OF 2009

(ON APPEAL FROM ESCC 5418 OF 2008)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 12 March 2009

Date of Judgment : 12 March 2009

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J U D G M E N T

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1.The appellant, a Turkish national, was convicted on her own plea of two offences, namely :

(1)     attempted theft, contrary to section 9 of the Theft Ordinance, Cap. 210 (together with section 159G of the Crimes Ordinance, Cap. 200); and

(2)     using a forged travel document, contrary to section 42(2)(b) and 42(4) of the Immigration Ordinance, Cap. 115.  

2.She was sentenced to be imprisonment for four months on the 1^st charge and 15 months on the 2^nd charge.  Two months of the sentence on the 1^st charge was ordered to be served concurrently with the sentence on the 2^nd charge.  The total sentence was therefore 17 months’ imprisonment.  

3.The appellant appeals her sentence on the 2^nd charge only.  

4.The facts admitted by the appellant revealed that on 12 November 2008 she and another woman, also a Turkish national, went to a jewellery shop in Chai Wan. 

5.They selected several items to purchase but, prior to completing the transactions, left the premises ostensibly to go to a bank to obtain funds.  Unbeknown to the staff of the jewellery shop the appellant had taken with her a diamond bracelet valued at $32,000.  One of the members of the staff of the jewellery shop who had accompanied the appellant and her companion to a nearby bank became suspicious when the two women suddenly demanded to leave the bank.  A telephone call by her to the jewellery shop revealed that the diamond bracelet was missing.  They all then returned to the jewellery shop.   As they entered the appellant was seen to discard the diamond bracelet by throwing it onto the floor.  The police were called and the appellant was charged with the offence of attempted theft. 

6.Subsequent police enquiries revealed that the appellant had entered Hong Kong as a visitor on 8 November 2008 and that the passport she had on that occasion used was a forgery.  The appellant had in 2004 been convicted in Hong Kong of theft and fined $1,000. 

7.In mitigation the magistrate was told that the appellant was then aged 31.  She was married with two children and her husband was employed in a restaurant in Beijing.  It was said on her behalf that she had purchased the forged passport having been told that she would not be able to use her own passport to visit her husband in Beijing because of her previous conviction here in Hong Kong.  It was submitted to the magistrate that naively she had taken that advice and used the forged passport that she had purchased. 

8.It is apparent from the Reasons for Sentence of the magistrate that he had given careful consideration to the sentence to be imposed on the appellant for both offences. 

9.The magistrate was alert to the range of sentences that have previously been imposed for both offences and in particular the offence of using a forged passport.  He was similarly mindful of the fact that the sentence he imposed was after the appellant had pleaded guilty. 

10.Having considered the authorities to which the magistrate has referred in his Reasons for Sentence together with the respondent’s written submissions and the authorities attached, I am satisfied that the starting point for sentence adopted by the magistrate for the use of forged travel document of 22 months’ imprisonment is within the range of sentences which have been regularly applied. 

11.The offence of using a forged travel document or passport has always been regarded in Hong Kong and elsewhere as an offence of significant gravity.  The imposition of the sentence of 15 months after plea of guilty is in my view in no way manifestly excessive. 

12.The fact that the magistrate saw fit only to order that two months of the sentence for attempted theft be consecutive to the sentence for this offence is in my opinion a matter of which the appellant should have no cause for complaint.  The magistrate could readily and properly have ordered the whole of that term of imprisonment be consecutive to the sentence for the use of the forged passport. 

13.Before me today the appellant asked that I reduce the sentence to be merciful to save her family and her children.  I am not prepared to do that.  The sentences were entirely proper in all of the circumstances.  The magistrate was aware of the circumstances of the appellant when he imposed those sentences. 

14.The appeal is dismissed. 

Ms Samantha Chiu, PP of Department of Justice, for the Respondent

Appellant in person, present