The Queen v. Rodriguez Joanne S.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 215 OF 1993

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BETWEEN

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Coram : Hon. Jones J. in Court

Date of hearing : 7th May 1993

Date of delivery of judgment : 7th May 1993

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J U D G M E N T

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1. The appellant pleaded guilty on the 18th February 1993 to a charge of using a forged travel document for the purpose of Part II of the Immigration Ordinance, contrary to s.42(2)(b) of the Immigration Ordinance and to using a forged travel document for the same purpose and contrary to the same section. She was sentenced to 9 months imprisonment on both charges to be served concurrently and appeals against these sentences.

2. The magistrate in his reasons for sentence referred to a number of authorities relating to the first charge which show that the guideline for this offence is between 6 months and 18 months’ imprisonment. The magistrate went on to say that these offences are fairly common and there were no mitigating circumstances save as to the appellant’s plea of guilty, her personal circumstances and to the fact that she did not intend to remain in Hong Kong.

3. Mr Wong, counsel on behalf of the appellant, referred me to a decision of Bewley J. given on the 18th January 1989, R v Bhagwant Singh-padda Mag. App. No. 1447 of 1988. In that case, the appellant was sentenced after trial to 18 months imprisonment for using an unlawfully obtained travel document which was reduced on appeal to 9 months imprisonment. In his judgment at page 5, Bewley J. had this to say with reference to this type of offence:-

“Although these cases indicate that there is apparently no tariff sentence for this offence and each case must be judged on its own merits, they seem to fall into four categories:-

1. The passport forgery business, which is the most serious form of the offence.

2. Use of fale passports by persons seeking to leave China via Hong Kong.

3. Repeated use of false passports by businessmen travelling in South East Asia.

4. Isolated use of a false passport by persons unconnected with Hong Kong or China.”

In this case, Bewley J. placed the appellant in the fourth category and imposed a sentence, as I have said, of 9 months imprisonment.

4. Mr Wong also referred me to a more recent authority R v Ria Nirmal Chandra, Mag. App. No.764 of 1992, a judgment of Duffy J. handed down on the 20th November 1992. In that case, the appellant was also in the fourth category and the sentence of 18 months imprisonment imposed by the magistrate was reduced to 6 months imprisonment.

5. Although I do not consider that the magistrate was wrong to impose the present sentence, I propose to adopt a lenient attitude in this case and reduce the sentence from 9 months imprisonment on both charges to 6 months imprisonment to be concurrent.

Mr Philip Ross, Crown Counsel, for Respondent.

Mr Richard Wong, assigned by D.L.A., for Appellant.