HKSAR v. CRISTIAN ALBERTO CARDONA QUINCHIA (ALSO KNOWN AS DANIEL MARTIN CHAVEZ CANO AND CHAVEZ CANO DANIEL MARTIN)
區域法院（刑事）HH Judge Woodcock12/4/2016
DCCC155/2016
A DCCC 155/2016 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO 155 OF 2016
--------------------
C C
HKSAR
D D
v
E Cristian Alberto E
Cardona Quinchia
(also known as
F F
Daniel Martin Chavez
Cano and Chavez Cano
G Daniel Martin) G
--------------------
H H
Before: HH Judge Woodcock
I
Date: 13 April 2016 at 11.35 am I
Present: Mr Paddy Law, PP of the Department of Justice, for
HKSAR
J Mr Lai Chi-kuen, William, of Hoosenally & Neo, J
assigned by the Director of Legal Aid, for the
defendant
K Offence: (1) & (3) Using a forged travel document for the K
purpose of Part II of the Immigration Ordinance (為施行
L 《入境條例》第II部而使用偽造的旅行證件) L
(2) Breach of deportation order (違反遞解離境令)
(4) Possession of a dangerous drug (管有危險藥物)
M M
---------------------
N N
Reasons for Sentence
O --------------------- O
P P
1. The defendant has pleaded guilty to four charges.
Q Q
2. Charge 1, using a forged travel document where the
R defendant entered Hong Kong on 31 October 2015 via the Arrival R
Hall at China Ferry Terminal in Tsim Sha Tsui using a forged
S passport. Charge 2, as a result of entering Hong Kong, the S
defendant is in breach of a deportation order. The date of that
T T
deportation order is 20 August 2015; it was in force when the
U U
CRT25/13.4.2016/SY 1 DCCC 155/2016/Sentence
V V
A defendant entered Hong Kong on 31 October thereby committing A
this breach.
B B
3. Charge 3 is a using a forged travel document offence
C C
where on 23 November 2015 the defendant left Hong Kong using the
same forged travel passport, forged document. Charge 4 is a
D D
possession of dangerous drugs offence. On 24 November 2015,
E immigration officers searched the defendant and found in his E
possession a dangerous drug, namely 1.31 grammes of a powder
F containing 1 gramme of cocaine. F
G G
4. The facts are straightforward. As I have said, Charge
1, using a forged travel document, the defendant entered Hong
H H
Kong just before midnight on 31 October 2015. He came through
I
the China Ferry Terminal situated in Tsim Sha Tsui. The I
defendant presented to an immigration officer a Guatemalan
J passport in the name of Cifuentes Florian Walter Orlando which J
later was found to be a false document. On that date he was
K allowed to enter and stay until 30 November 2015. K
L L
5. Twenty-three days later, the defendant left Hong Kong,
committing Charge 3, through Lok Ma Chau Spur Line Control Point
M M
in the New Territories. He presented the same forged passport to
N an immigration officer and was allowed to leave. He then N
proceeded to the Shenzhen Control Point in mainland China. What
O happened next was that he was refused entry into China. O
P P
6. The Chinese Immigration Department sent the defendant
back through Lok Ma Chau Spur Line Control Point to Hong Kong.
Q Q
That took place the next day, 24 November 2015. When Hong Kong
R immigration officers dealt with the defendant, he claimed that R
he was the rightful holder of the Guatemalan passport which bore
S his true identity. S
T T
7. As a result of an investigation, the defendant was
searched by customs officers. In his jacket pocket an officer
U U
CRT25/13.4.2016/SY 2 DCCC 155/2016/Sentence
V V
A found two packets of cocaine. As I have said, upon examination, A
the total amount of powder was 1.31 grammes containing 1 gramme
B of cocaine. The estimated retail price was just over $1,000. B
C C
8. Under caution, the defendant admitted that he had
purchased the cocaine in Lan Kwai Fong for $1,000 because he
D D
wanted to try it. Under caution, he also admitted that (after it
E was revealed by way of his fingerprints) the passport he used to E
enter and leave Hong Kong was forged, he admitted under caution
F that his real name was Cristian Alberto Cardona Quinchia. F
G G
9. The defendant is not a man with a clear record. In
October 2014 he was sentenced to a total of 27 months’
H H
imprisonment by the District Court for two burglary offences.
I
For that sentence, the defendant was released from prison on 26 I
August 2015. He was then put on a plane and flown back to
J Bogota, Columbia. J
K 10. Prior to his leaving Hong Kong, on 20 August 2015, the K
defendant was served with a deportation order. The contents of
L L
the order were explained and the defendant signed indicating he
understood the contents of that order.
M M
N 11. In mitigation today, I have been told that the N
defendant came to Hong Kong with the purpose of obtaining visas
O to go to China; his ultimate destination was mainland China. I O
have been told that the defendant was fleeing Columbia because
P P
he was being blackmailed and threatened, but why and when was
not elaborated upon.
Q Q
R 12. The defendant is 26 years old. He is single. When he R
left Columbia, he was not working at that time. He had
S previously been a motorcycle maintenance worker as well as S
trying his hand at buying and selling garments.
T T
U U
CRT25/13.4.2016/SY 3 DCCC 155/2016/Sentence
V V
A 13. I have also had a letter from the defendant explaining A
that he is remorseful. He also says that he has not wasted his
B time whilst in custody, has learned better English and Cantonese B
and found God. In his letter he asks for leniency.
C C
14. Mr Lai on behalf of the defendant has said all he can
D D
in mitigation.
E E
15. Mr Law for the prosecution has produced some useful
F authorities for my consideration. These include the Court of F
Appeal case, HKSAR v Pahila [2007] 1 HKLRD 410. In that
G G
authority the appellant made false representation to an
immigration officer by way of producing a false passport. The
H H
Court of Appeal was of the view that sentences after plea of up
I
to 18 months was justified. What that means is a starting point I
of 27 months is justified.
J J
16. For a breach of deportation order, I have been
K referred to and take into account the authority of HKSAR v K
Cortez Emily Bisoy [2002] 2 HKLRD 762 where the Court of Appeal
L L
was of the view that after plea, an 18-month term of
imprisonment was appropriate for a breach of deportation order.
M M
Again, that would mean a starting point of 27 months.
N N
17. The Court of Appeal has also said that such sentences
O for those offences may properly be ordered to be served O
consecutively, and I have referred myself to HKSAR v Wabhi Tri-
P P
Wahyu also known as Wahyu Wabhi Tri, Supri Yatnak and
Supriyatnak, CACC 345/2014. The Court of Appeal finds that to
Q Q
make a breach of deportation order sentence consecutive to other
R sentences imposed for immigration offences appropriate, to R
reflect the seriousness of making false claims to immigration
S officers. It means it is not entirely clear who is really S
admitted into Hong Kong via immigration channels. It also
T T
reflects the seriousness of breaching a court order such as a
deportation order.
U U
CRT25/13.4.2016/SY 4 DCCC 155/2016/Sentence
V V
A A
18. Defendant, please stand up.
B B
19. Having taken into account the facts of this case,
C C
mitigation put forward, the authorities produced and those that
I consider relevant, I intend to deal with the four charges in
D D
this way.
E E
20. For Charges 1, 2 and 3, I will take a starting point
F of 24 months. You have pleaded guilty, you are entitled to a F
discount of one-third. After that discount is applied, for
G G
Charges 1, 2 and 3, you are sentenced to 16 months’ imprisonment
for each charge.
H H
I
21. For Charge 4, possession of the cocaine, a term of I
imprisonment is inevitable for possession of a dangerous drug in
J such circumstances, but I take into account the quantity is not J
a significant amount. Having considered that, I take a starting
K point of 12 months’ imprisonment. You have pleaded guilty, you K
are entitled to a discount of one-third. After that discount is
L L
applied, for Charge 4, you are sentenced to 8 months’
imprisonment.
M M
N 22. I will consider the totality principle and the nature N
of all four charges and the dates on which they were committed.
O I will also take into account the Court of Appeal’s view that a O
sentence for a breach of deportation order should be served
P P
consecutively to other immigration offences, in particular,
using a false travel document.
Q Q
R 23. Therefore, after considering those factors, the R
following sentences will be imposed. Charge 1, you are sentenced
S to 16 months’ imprisonment. Charge 2, you are sentenced to 16 S
months’ imprisonment. I order that the 16 months of Charge 2 be
T T
served consecutively to Charge 1. For Charge 3, you are
sentenced to 16 months’ imprisonment. I order that that 16
U U
CRT25/13.4.2016/SY 5 DCCC 155/2016/Sentence
V V
A months be served concurrently to Charge 1. For Charge 4, you are A
sentenced to 8 months’ imprisonment. I order that 4 months of
B that 8 months be served consecutively to Charge 1. Therefore, B
the total sentence is one of 3 years’ imprisonment for all four
C C
charges.
D D
DEFENDANT: I understand.
E E
24. You understand. The total sentence is one of 3 years’
F imprisonment. F
G G
H H
I I
(A.J. Woodcock)
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT25/13.4.2016/SY 6 DCCC 155/2016/Sentence
V V
A DCCC 155/2016 A
IN THE DISTRICT COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
CRIMINAL CASE NO 155 OF 2016
--------------------
C C
HKSAR
D D
v
E Cristian Alberto E
Cardona Quinchia
(also known as
F F
Daniel Martin Chavez
Cano and Chavez Cano
G Daniel Martin) G
--------------------
H H
Before: HH Judge Woodcock
I
Date: 13 April 2016 at 11.35 am I
Present: Mr Paddy Law, PP of the Department of Justice, for
HKSAR
J Mr Lai Chi-kuen, William, of Hoosenally & Neo, J
assigned by the Director of Legal Aid, for the
defendant
K Offence: (1) & (3) Using a forged travel document for the K
purpose of Part II of the Immigration Ordinance (為施行
L 《入境條例》第II部而使用偽造的旅行證件) L
(2) Breach of deportation order (違反遞解離境令)
(4) Possession of a dangerous drug (管有危險藥物)
M M
---------------------
N N
Reasons for Sentence
O --------------------- O
P P
1. The defendant has pleaded guilty to four charges.
Q Q
2. Charge 1, using a forged travel document where the
R defendant entered Hong Kong on 31 October 2015 via the Arrival R
Hall at China Ferry Terminal in Tsim Sha Tsui using a forged
S passport. Charge 2, as a result of entering Hong Kong, the S
defendant is in breach of a deportation order. The date of that
T T
deportation order is 20 August 2015; it was in force when the
U U
CRT25/13.4.2016/SY 1 DCCC 155/2016/Sentence
V V
A defendant entered Hong Kong on 31 October thereby committing A
this breach.
B B
3. Charge 3 is a using a forged travel document offence
C C
where on 23 November 2015 the defendant left Hong Kong using the
same forged travel passport, forged document. Charge 4 is a
D D
possession of dangerous drugs offence. On 24 November 2015,
E immigration officers searched the defendant and found in his E
possession a dangerous drug, namely 1.31 grammes of a powder
F containing 1 gramme of cocaine. F
G G
4. The facts are straightforward. As I have said, Charge
1, using a forged travel document, the defendant entered Hong
H H
Kong just before midnight on 31 October 2015. He came through
I
the China Ferry Terminal situated in Tsim Sha Tsui. The I
defendant presented to an immigration officer a Guatemalan
J passport in the name of Cifuentes Florian Walter Orlando which J
later was found to be a false document. On that date he was
K allowed to enter and stay until 30 November 2015. K
L L
5. Twenty-three days later, the defendant left Hong Kong,
committing Charge 3, through Lok Ma Chau Spur Line Control Point
M M
in the New Territories. He presented the same forged passport to
N an immigration officer and was allowed to leave. He then N
proceeded to the Shenzhen Control Point in mainland China. What
O happened next was that he was refused entry into China. O
P P
6. The Chinese Immigration Department sent the defendant
back through Lok Ma Chau Spur Line Control Point to Hong Kong.
Q Q
That took place the next day, 24 November 2015. When Hong Kong
R immigration officers dealt with the defendant, he claimed that R
he was the rightful holder of the Guatemalan passport which bore
S his true identity. S
T T
7. As a result of an investigation, the defendant was
searched by customs officers. In his jacket pocket an officer
U U
CRT25/13.4.2016/SY 2 DCCC 155/2016/Sentence
V V
A found two packets of cocaine. As I have said, upon examination, A
the total amount of powder was 1.31 grammes containing 1 gramme
B of cocaine. The estimated retail price was just over $1,000. B
C C
8. Under caution, the defendant admitted that he had
purchased the cocaine in Lan Kwai Fong for $1,000 because he
D D
wanted to try it. Under caution, he also admitted that (after it
E was revealed by way of his fingerprints) the passport he used to E
enter and leave Hong Kong was forged, he admitted under caution
F that his real name was Cristian Alberto Cardona Quinchia. F
G G
9. The defendant is not a man with a clear record. In
October 2014 he was sentenced to a total of 27 months’
H H
imprisonment by the District Court for two burglary offences.
I
For that sentence, the defendant was released from prison on 26 I
August 2015. He was then put on a plane and flown back to
J Bogota, Columbia. J
K 10. Prior to his leaving Hong Kong, on 20 August 2015, the K
defendant was served with a deportation order. The contents of
L L
the order were explained and the defendant signed indicating he
understood the contents of that order.
M M
N 11. In mitigation today, I have been told that the N
defendant came to Hong Kong with the purpose of obtaining visas
O to go to China; his ultimate destination was mainland China. I O
have been told that the defendant was fleeing Columbia because
P P
he was being blackmailed and threatened, but why and when was
not elaborated upon.
Q Q
R 12. The defendant is 26 years old. He is single. When he R
left Columbia, he was not working at that time. He had
S previously been a motorcycle maintenance worker as well as S
trying his hand at buying and selling garments.
T T
U U
CRT25/13.4.2016/SY 3 DCCC 155/2016/Sentence
V V
A 13. I have also had a letter from the defendant explaining A
that he is remorseful. He also says that he has not wasted his
B time whilst in custody, has learned better English and Cantonese B
and found God. In his letter he asks for leniency.
C C
14. Mr Lai on behalf of the defendant has said all he can
D D
in mitigation.
E E
15. Mr Law for the prosecution has produced some useful
F authorities for my consideration. These include the Court of F
Appeal case, HKSAR v Pahila [2007] 1 HKLRD 410. In that
G G
authority the appellant made false representation to an
immigration officer by way of producing a false passport. The
H H
Court of Appeal was of the view that sentences after plea of up
I
to 18 months was justified. What that means is a starting point I
of 27 months is justified.
J J
16. For a breach of deportation order, I have been
K referred to and take into account the authority of HKSAR v K
Cortez Emily Bisoy [2002] 2 HKLRD 762 where the Court of Appeal
L L
was of the view that after plea, an 18-month term of
imprisonment was appropriate for a breach of deportation order.
M M
Again, that would mean a starting point of 27 months.
N N
17. The Court of Appeal has also said that such sentences
O for those offences may properly be ordered to be served O
consecutively, and I have referred myself to HKSAR v Wabhi Tri-
P P
Wahyu also known as Wahyu Wabhi Tri, Supri Yatnak and
Supriyatnak, CACC 345/2014. The Court of Appeal finds that to
Q Q
make a breach of deportation order sentence consecutive to other
R sentences imposed for immigration offences appropriate, to R
reflect the seriousness of making false claims to immigration
S officers. It means it is not entirely clear who is really S
admitted into Hong Kong via immigration channels. It also
T T
reflects the seriousness of breaching a court order such as a
deportation order.
U U
CRT25/13.4.2016/SY 4 DCCC 155/2016/Sentence
V V
A A
18. Defendant, please stand up.
B B
19. Having taken into account the facts of this case,
C C
mitigation put forward, the authorities produced and those that
I consider relevant, I intend to deal with the four charges in
D D
this way.
E E
20. For Charges 1, 2 and 3, I will take a starting point
F of 24 months. You have pleaded guilty, you are entitled to a F
discount of one-third. After that discount is applied, for
G G
Charges 1, 2 and 3, you are sentenced to 16 months’ imprisonment
for each charge.
H H
I
21. For Charge 4, possession of the cocaine, a term of I
imprisonment is inevitable for possession of a dangerous drug in
J such circumstances, but I take into account the quantity is not J
a significant amount. Having considered that, I take a starting
K point of 12 months’ imprisonment. You have pleaded guilty, you K
are entitled to a discount of one-third. After that discount is
L L
applied, for Charge 4, you are sentenced to 8 months’
imprisonment.
M M
N 22. I will consider the totality principle and the nature N
of all four charges and the dates on which they were committed.
O I will also take into account the Court of Appeal’s view that a O
sentence for a breach of deportation order should be served
P P
consecutively to other immigration offences, in particular,
using a false travel document.
Q Q
R 23. Therefore, after considering those factors, the R
following sentences will be imposed. Charge 1, you are sentenced
S to 16 months’ imprisonment. Charge 2, you are sentenced to 16 S
months’ imprisonment. I order that the 16 months of Charge 2 be
T T
served consecutively to Charge 1. For Charge 3, you are
sentenced to 16 months’ imprisonment. I order that that 16
U U
CRT25/13.4.2016/SY 5 DCCC 155/2016/Sentence
V V
A months be served concurrently to Charge 1. For Charge 4, you are A
sentenced to 8 months’ imprisonment. I order that 4 months of
B that 8 months be served consecutively to Charge 1. Therefore, B
the total sentence is one of 3 years’ imprisonment for all four
C C
charges.
D D
DEFENDANT: I understand.
E E
24. You understand. The total sentence is one of 3 years’
F imprisonment. F
G G
H H
I I
(A.J. Woodcock)
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT25/13.4.2016/SY 6 DCCC 155/2016/Sentence
V V
DCCC155/2016 HKSAR v. CRISTIAN ALBERTO CARDONA QUINCHIA (ALSO KNOWN AS DANIEL MARTIN CHAVEZ CANO AND CHAVEZ CANO DANIEL MARTIN) - LawHero