區域法院（刑事）Deputy District Judge Kathie Cheung29/7/2018[2018] HKDC 917
DCCC74/2018
A A
B B
DCCC 74/2018
C [2018] HKDC 917 C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 74 OF 2018 E
F F
----------------
G HKSAR G
v
H H
BRUHAT ARNAUD Defendant
I ---------------- I
J J
K Before: Deputy District Judge Kathie Cheung K
Date: 30 July 2018
L L
Present: Miss. Cherry Ho, Public Prosecutor of
M Department of Justice, for HKSAR M
Mr. Dosani, Mehboobali Ahmedali, of M/s Jal N. Karbhari &
N N
Co, assigned by DLA, for the defendant
O Offences: [1]-[2] Conspiracy to obtain services by deception O
P P
--------------------------------------
Q REASONS FOR SENTENCE Q
--------------------------------------
R R
S 1. The defendant pleaded guilty to two counts of “conspiracy to obtain S
services by deception”, contrary to section 18A(1) of the Theft
T T
Ordinance, Cap. 210, sections 159A and 159C of the Crimes
U U
V V
- 2 -
A A
B Ordinance, Cap. 200 and sections 2(3) and 4(2) of the Criminal B
Jurisdiction Ordinance, Cap. 461.
C C
D Facts D
E E
2. On 14 November 2017, a Sri Lankan male (“the Male”) attempted to
F board Flight CX379 bound for Dusseldorf, Germany at the Hong F
Kong International Airport but was unsuccessful. He was found in
G G
possession of a boarding pass for Flight CX379 from Hong Kong to
H Dusseldorf (“Exhibit 1”) and a suspected forged French passport H
bearing the photo of the Male (“Exhibit 2”). The Male was
I I
removed from Hong Kong on the same day.
J J
3. Upon examination, it was found that Exhibit 2 bore the personal
K K
particulars and passport number of the Defendant. Forensic
L L
examination confirmed that Exhibit 2 was forged.
M M
4. Record check revealed that the Defendant had arrived in Hong Kong
N N
on the strength of his French passport on 13 November 2017 and he
O was permitted to remain in Hong Kong as a visitor. No departure O
record was found subsequent to the arrival of the Defendant.
P P
Q 5. On 15 November 2017, the Defendant checked in for Flight AF0185 Q
bound for Paris, France at the check-in counter of Air France at the
R R
Hong Kong International Airport and obtained a boarding pass for
S that flight (“Exhibit 3”). S
T T
U U
V V
- 3 -
A A
B 6. On the same day, the Defendant checked in for Flight UO763 bound B
for Phuket, Thailand at the check-in counter of HK Express and
C C
obtained a boarding pass for that flight (“Exhibit 4”).
D D
7. At around 8:28 p.m. on the same day, the Defendant presented for
E E
departure clearance at the immigration counter of the Hong Kong
F International Airport on the strength of his passport and the boarding F
pass for Flight UO763 (Exhibit 4). The Defendant was intercepted
G G
for secondary examination. Upon search, the Defendant was found
H in possession of the boarding pass for Flight AF0185 (Exhibit 3). H
I I
8. The Defendant was arrested. Under caution, the Defendant admitted
J that he was going to transfer the boarding pass for Paris (Exhibit 3) J
to an unknown Indian male near the gate for free air tickets.
K K
L L
9. In subsequent cautioned interview, the Defendant admitted that:-
M
(a) In April 2017, he met a Spanish male in Bangkok and the M
Spanish male asked him to help someone to obtain a boarding
N N
pass in exchange for free travel;
O (b) He was interested and they exchanged contact means; O
P (c) 6 months later, the Spanish male contacted him and sent him P
e-tickets by e-mail to help someone to obtain a boarding pass for
Q Q
free air ticket;
R R
(d) The Spanish male gave his contact details to an Indian male;
S S
(e) The Indian male was the organizer who arranged him to come to
T
Hong Kong to give a boarding pass to someone else; T
U U
V V
- 4 -
A A
B (f) The Indian male instructed him to get 2 boarding passes at the B
counter of Cathay Pacific Airways in Kuala Lumpur, one for the
C C
flight from Kuala Lumpur to Hong Kong and one for the flight
D from Hong Kong to Dusseldorf; D
E (g) Upon arrival at the Hong Kong International Airport on 13 E
November 2017, he followed the instructions of the Indian male
F F
and gave his boarding pass for Flight CX379 from Hong Kong to
G Dusseldorf to a European male for someone to fly to Germany; G
H
(h) He then presented for arrival clearance in Hong Kong without H
continuing his onward flight to Dusseldorf;
I I
(i) He later received e-tickets for the flights to Phuket and Paris
J respectively; J
K (j) On 15 November 2017, as instructed by the Indian male, he K
checked in at the counters of Air France and HK Express and
L L
obtained 2 boarding passes for Flight AF0185 to Paris and Flight
M UO763 to Phuket respectively; M
N (k) He planned to follow the instructions of the Indian male and to N
give his boarding pass bound for Paris to someone for someone to
O O
go to Paris;
P P
(l) He intended to go to Phuket, Thailand only and he had no intention
Q to go to Paris; Q
(m) The Indian male had given him THB$20,000 and 5 free air tickets
R R
and had promised to give him another THB$20,000 in Phuket after
S S
the transfer of the boarding passes; and
T T
U U
V V
- 5 -
A A
B (n) He was aware that another person could travel to Europe with the B
boarding pass under his name.
C C
Mitigation
D D
E 10. The defendant is aged 32, single and was born in France. Prior to the E
present offence, he worked as a driver earing about US$1,100 per
F F
month. He has clear criminal record in Hong Kong and France. He
G and his elder brother were responsible for taking care of the parents G
in France.
H H
I 11. In mitigation, it was submitted that the defendant committed the I
offences out of greed. He was not the mastermind of the scheme and
J J
he only took part in it out of greed. Given his guilty plea and no loss
K was caused to the airlines, the court was urged to impose lenient and K
concurrent sentences on the defendant.
L L
M Sentence M
N N
12. The present case relates to scheme for human trafficking.
O O
13. In HKSAR v Cheng Kwong Chung & Ors, CACC 536/2001, the
P P
Court of Appeal stated at paragraph 51:
Q Q
“We take the view that offences such as these are very serious. …
R R
the offences deliberately seek not only to undermine Hong Kong’s
S S
laws but also the immigrations laws of other jurisdictions, and to
T
enable persons to travel on aircraft when they are not authorized to T
do so. It hardly needs to be emphasized that conduct of this kind is
U U
V V
- 6 -
A A
B to be treated by our courts with a firm hand, not least when air B
security and international immigration controls carry an
C C
importance greater than ever before.”
D D
14. In HKSAR v He Wenyou [2009] 3 HKLRD 445, the Court of Appeal
E E
said at paragraph 9:
F F
“ We must point out that a higher starting point is applicable to this
G G
kind of cases, which clearly involve sophisticated planning and
H arrangement. Making use of Hong Kong’s position as a hub of H
communications, offenders assist illegal immigrants in entering a
I I
third country. By means of a fraudulent scheme, offenders help
J illegal immigrants enter the restricted area of the Hong Kong J
International Airport, where they then use false boarding passes to
K K
board flights bound for a third country. Upon arrival in that
L L
country, they will use false identity documents for gaining entry
M
into that country. These activities will obviously tarnish Hong M
Kong’s international reputation. Furthermore, as a result of those
N N
activities, immigration authorities of foreign countries will become
O wary of visitors from Hong Kong even when they are holding lawful O
travel documents, which means that visitors from Hong Kong will
P P
have to suffer a certain degree of inconvenience when they enter
Q those countries. Severe, deterrent sentences must therefore be Q
imposed for those offences.”
R R
S 15. The Court of Appeal in HKSAR v Lee Shinwon & Ors [2012] 1 S
HKLRD 283 said that because of the above-mentioned policy
T T
considerations, the sentencing goal is deterrence and the sentence
U U
V V
- 7 -
A A
B must be sufficient severe so that persons who may be approached to B
assist in such schemes will realize the seriousness of the crime and
C C
the consequences should they be detected.
D D
16. In the present case, the defendant was not the person being
E E
trafficked. Whilst I accept the defendant is not the mastermind
F behind the scheme, he was somehow recruited to assist in the F
implementation of the scheme. As the Court of Appeal remarked in
G G
Lee Shinwon, without the defendant’s cooperation, the conspiracy
H would collapse. He was essential to the conspiracy’s successful H
implementation.
I I
J 17. In the present case, the facts revealed while the defendant presented J
for departure clearance at the immigration counter his passport and
K K
the boarding pass for the fight to Phuket, he was intercepted for
L L
secondary examination and was in possession of the boarding pass
M
for Paris. It is clear that but for the interception, he would have M
entered the restricted area and then passed the boarding pass for
N N
Paris to someone else as instructed.
O O
18. In view of the circumstances of the case, the background of the
P P
defendant and the cases referred to by the defence1, I consider the
Q appropriate starting point to be 3 years’ imprisonment for each Q
count. Given the defendant’s guilty plea, the sentence is reduced to
R R
2 years’ imprisonment for each count. Apart from that, I do not see
S other mitigating factor justifying further reduction of sentence. The S
T T
1
HKSAR v He Wenyou, CACC 235/2008; HKSAR v Yeung Wai Man, DCCC 88/2011; &
HKSAR v Mok Chi Kuen, DCCC 810/2012
U U
V V
- 8 -
A A
B two offences are separate and distinct offences and in theory their B
sentences should run consecutive to each other. Having considered
C C
the totality principle, I consider a total sentence of 2 years and 6
D months is sufficient to reflect the criminality of the defendant. In the D
circumstances, I order 6 months of the sentence for charge 2 to run
E E
consecutive to the sentence for charge 1, making a total sentence of
F 2 years and 6 months. The defendant is therefore sentenced to a total F
sentence of 2 years and 6 months’ imprisonment.
G G
H H
I I
J J
(Kathie Cheung)
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 74/2018
C [2018] HKDC 917 C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 74 OF 2018 E
F F
----------------
G HKSAR G
v
H H
BRUHAT ARNAUD Defendant
I ---------------- I
J J
K Before: Deputy District Judge Kathie Cheung K
Date: 30 July 2018
L L
Present: Miss. Cherry Ho, Public Prosecutor of
M Department of Justice, for HKSAR M
Mr. Dosani, Mehboobali Ahmedali, of M/s Jal N. Karbhari &
N N
Co, assigned by DLA, for the defendant
O Offences: [1]-[2] Conspiracy to obtain services by deception O
P P
--------------------------------------
Q REASONS FOR SENTENCE Q
--------------------------------------
R R
S 1. The defendant pleaded guilty to two counts of “conspiracy to obtain S
services by deception”, contrary to section 18A(1) of the Theft
T T
Ordinance, Cap. 210, sections 159A and 159C of the Crimes
U U
V V
- 2 -
A A
B Ordinance, Cap. 200 and sections 2(3) and 4(2) of the Criminal B
Jurisdiction Ordinance, Cap. 461.
C C
D Facts D
E E
2. On 14 November 2017, a Sri Lankan male (“the Male”) attempted to
F board Flight CX379 bound for Dusseldorf, Germany at the Hong F
Kong International Airport but was unsuccessful. He was found in
G G
possession of a boarding pass for Flight CX379 from Hong Kong to
H Dusseldorf (“Exhibit 1”) and a suspected forged French passport H
bearing the photo of the Male (“Exhibit 2”). The Male was
I I
removed from Hong Kong on the same day.
J J
3. Upon examination, it was found that Exhibit 2 bore the personal
K K
particulars and passport number of the Defendant. Forensic
L L
examination confirmed that Exhibit 2 was forged.
M M
4. Record check revealed that the Defendant had arrived in Hong Kong
N N
on the strength of his French passport on 13 November 2017 and he
O was permitted to remain in Hong Kong as a visitor. No departure O
record was found subsequent to the arrival of the Defendant.
P P
Q 5. On 15 November 2017, the Defendant checked in for Flight AF0185 Q
bound for Paris, France at the check-in counter of Air France at the
R R
Hong Kong International Airport and obtained a boarding pass for
S that flight (“Exhibit 3”). S
T T
U U
V V
- 3 -
A A
B 6. On the same day, the Defendant checked in for Flight UO763 bound B
for Phuket, Thailand at the check-in counter of HK Express and
C C
obtained a boarding pass for that flight (“Exhibit 4”).
D D
7. At around 8:28 p.m. on the same day, the Defendant presented for
E E
departure clearance at the immigration counter of the Hong Kong
F International Airport on the strength of his passport and the boarding F
pass for Flight UO763 (Exhibit 4). The Defendant was intercepted
G G
for secondary examination. Upon search, the Defendant was found
H in possession of the boarding pass for Flight AF0185 (Exhibit 3). H
I I
8. The Defendant was arrested. Under caution, the Defendant admitted
J that he was going to transfer the boarding pass for Paris (Exhibit 3) J
to an unknown Indian male near the gate for free air tickets.
K K
L L
9. In subsequent cautioned interview, the Defendant admitted that:-
M
(a) In April 2017, he met a Spanish male in Bangkok and the M
Spanish male asked him to help someone to obtain a boarding
N N
pass in exchange for free travel;
O (b) He was interested and they exchanged contact means; O
P (c) 6 months later, the Spanish male contacted him and sent him P
e-tickets by e-mail to help someone to obtain a boarding pass for
Q Q
free air ticket;
R R
(d) The Spanish male gave his contact details to an Indian male;
S S
(e) The Indian male was the organizer who arranged him to come to
T
Hong Kong to give a boarding pass to someone else; T
U U
V V
- 4 -
A A
B (f) The Indian male instructed him to get 2 boarding passes at the B
counter of Cathay Pacific Airways in Kuala Lumpur, one for the
C C
flight from Kuala Lumpur to Hong Kong and one for the flight
D from Hong Kong to Dusseldorf; D
E (g) Upon arrival at the Hong Kong International Airport on 13 E
November 2017, he followed the instructions of the Indian male
F F
and gave his boarding pass for Flight CX379 from Hong Kong to
G Dusseldorf to a European male for someone to fly to Germany; G
H
(h) He then presented for arrival clearance in Hong Kong without H
continuing his onward flight to Dusseldorf;
I I
(i) He later received e-tickets for the flights to Phuket and Paris
J respectively; J
K (j) On 15 November 2017, as instructed by the Indian male, he K
checked in at the counters of Air France and HK Express and
L L
obtained 2 boarding passes for Flight AF0185 to Paris and Flight
M UO763 to Phuket respectively; M
N (k) He planned to follow the instructions of the Indian male and to N
give his boarding pass bound for Paris to someone for someone to
O O
go to Paris;
P P
(l) He intended to go to Phuket, Thailand only and he had no intention
Q to go to Paris; Q
(m) The Indian male had given him THB$20,000 and 5 free air tickets
R R
and had promised to give him another THB$20,000 in Phuket after
S S
the transfer of the boarding passes; and
T T
U U
V V
- 5 -
A A
B (n) He was aware that another person could travel to Europe with the B
boarding pass under his name.
C C
Mitigation
D D
E 10. The defendant is aged 32, single and was born in France. Prior to the E
present offence, he worked as a driver earing about US$1,100 per
F F
month. He has clear criminal record in Hong Kong and France. He
G and his elder brother were responsible for taking care of the parents G
in France.
H H
I 11. In mitigation, it was submitted that the defendant committed the I
offences out of greed. He was not the mastermind of the scheme and
J J
he only took part in it out of greed. Given his guilty plea and no loss
K was caused to the airlines, the court was urged to impose lenient and K
concurrent sentences on the defendant.
L L
M Sentence M
N N
12. The present case relates to scheme for human trafficking.
O O
13. In HKSAR v Cheng Kwong Chung & Ors, CACC 536/2001, the
P P
Court of Appeal stated at paragraph 51:
Q Q
“We take the view that offences such as these are very serious. …
R R
the offences deliberately seek not only to undermine Hong Kong’s
S S
laws but also the immigrations laws of other jurisdictions, and to
T
enable persons to travel on aircraft when they are not authorized to T
do so. It hardly needs to be emphasized that conduct of this kind is
U U
V V
- 6 -
A A
B to be treated by our courts with a firm hand, not least when air B
security and international immigration controls carry an
C C
importance greater than ever before.”
D D
14. In HKSAR v He Wenyou [2009] 3 HKLRD 445, the Court of Appeal
E E
said at paragraph 9:
F F
“ We must point out that a higher starting point is applicable to this
G G
kind of cases, which clearly involve sophisticated planning and
H arrangement. Making use of Hong Kong’s position as a hub of H
communications, offenders assist illegal immigrants in entering a
I I
third country. By means of a fraudulent scheme, offenders help
J illegal immigrants enter the restricted area of the Hong Kong J
International Airport, where they then use false boarding passes to
K K
board flights bound for a third country. Upon arrival in that
L L
country, they will use false identity documents for gaining entry
M
into that country. These activities will obviously tarnish Hong M
Kong’s international reputation. Furthermore, as a result of those
N N
activities, immigration authorities of foreign countries will become
O wary of visitors from Hong Kong even when they are holding lawful O
travel documents, which means that visitors from Hong Kong will
P P
have to suffer a certain degree of inconvenience when they enter
Q those countries. Severe, deterrent sentences must therefore be Q
imposed for those offences.”
R R
S 15. The Court of Appeal in HKSAR v Lee Shinwon & Ors [2012] 1 S
HKLRD 283 said that because of the above-mentioned policy
T T
considerations, the sentencing goal is deterrence and the sentence
U U
V V
- 7 -
A A
B must be sufficient severe so that persons who may be approached to B
assist in such schemes will realize the seriousness of the crime and
C C
the consequences should they be detected.
D D
16. In the present case, the defendant was not the person being
E E
trafficked. Whilst I accept the defendant is not the mastermind
F behind the scheme, he was somehow recruited to assist in the F
implementation of the scheme. As the Court of Appeal remarked in
G G
Lee Shinwon, without the defendant’s cooperation, the conspiracy
H would collapse. He was essential to the conspiracy’s successful H
implementation.
I I
J 17. In the present case, the facts revealed while the defendant presented J
for departure clearance at the immigration counter his passport and
K K
the boarding pass for the fight to Phuket, he was intercepted for
L L
secondary examination and was in possession of the boarding pass
M
for Paris. It is clear that but for the interception, he would have M
entered the restricted area and then passed the boarding pass for
N N
Paris to someone else as instructed.
O O
18. In view of the circumstances of the case, the background of the
P P
defendant and the cases referred to by the defence1, I consider the
Q appropriate starting point to be 3 years’ imprisonment for each Q
count. Given the defendant’s guilty plea, the sentence is reduced to
R R
2 years’ imprisonment for each count. Apart from that, I do not see
S other mitigating factor justifying further reduction of sentence. The S
T T
1
HKSAR v He Wenyou, CACC 235/2008; HKSAR v Yeung Wai Man, DCCC 88/2011; &
HKSAR v Mok Chi Kuen, DCCC 810/2012
U U
V V
- 8 -
A A
B two offences are separate and distinct offences and in theory their B
sentences should run consecutive to each other. Having considered
C C
the totality principle, I consider a total sentence of 2 years and 6
D months is sufficient to reflect the criminality of the defendant. In the D
circumstances, I order 6 months of the sentence for charge 2 to run
E E
consecutive to the sentence for charge 1, making a total sentence of
F 2 years and 6 months. The defendant is therefore sentenced to a total F
sentence of 2 years and 6 months’ imprisonment.
G G
H H
I I
J J
(Kathie Cheung)
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V