OVERVIEW
Offences involving forged travel documents in Hong Kong are primarily governed by section 42 of the Immigration Ordinance (Cap. 115).
Key offences include:
- Forgery or alteration: Making, altering, or forging a travel document without lawful authority.
- Using a forged document: Presenting a fake, altered, or unlawfully obtained passport to immigration officers for entry or departure clearance.
- Possession of a forged document: Carrying or holding a forged travel document. The prosecution does not need to prove that it was used; possession with knowledge or reason to believe that it is false may constitute an offence.
- Unlawfully obtained documents: Possessing or using a genuine passport or travel document that belongs to another person, including cases involving photo substitution or identity theft.
STATUTORY PROVISIONS
Section 42 of the Immigration Ordinance (Cap. 115)
The relevant part of the current statutory provision states:
Section 42(2)
Any person who—(a)(i) alters without lawful authority or forges; or (ii) transfers to another without reasonable excuse, any travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card or any document whatsoever issued, kept or made under or for the purposes of Part IB, II, III or IV of this Ordinance; (b) uses for the purposes of Part IB, II, III, IV or VIIC of this Ordinance any forged, false or unlawfully obtained or altered travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass, Vietnamese refugee card or other document; (c) has in his possession—(i) any forged, false or unlawfully obtained or altered travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card; or (ii) any forged, false or unlawfully altered document whatsoever intended for use for the purposes of Part IB, II, III, IV or VIIC of this Ordinance, shall be guilty of an offence.
SENTENCING NUANCES
Although the Ordinance distinguishes between possessing and using a forged travel document, offences under sections 42(2)(b) and 42(2)(c) are subject to the same statutory maximum of 14 years' imprisonment and a HK$150,000 fine on conviction on indictment. The court may nevertheless assess the seriousness of the conduct differently.
- Using a forged document: Active presentation of a forged document to deceive an immigration or border-control officer is generally treated more seriously because of the immediate threat to border control and international comity.
- Simple possession: Where the offence concerns possession without actual use, the absence of an immediate plan to present the document, or proof that the offender acted as a low-level courier under pressure, may be relevant to the appropriate starting point and mitigation.
Maximum Penalty
Maximum Statutory Penalty: Upon conviction on indictment, the maximum penalty under section 42(4)(a) of the Immigration Ordinance (Cap. 115) is a fine of HK$150,000 and 14 years' imprisonment.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.