HKSAR v. Chu Man

HCMA001012/1998

HCMA1012/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1012 OF 1998

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Coram: Stock, J. in Court

Date of hearing : 8 December 1998

Date of judgment : 8 December 1998

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J U D G M E N T

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1. This is the second case before me today in which the offence with which an appellant is concerned is the use of a false travel document to travel from the Mainland to the United States.

2. The appellant is aged only 21 years and she was attending a technical college on the Mainland and there obtained this false travel document.

3. On 29th September she was stopped at the China Ferry Terminal control point, having presented a passport of the People's Republic of China and it was discovered that what is called the bio-dated page was a forgery in that it had a name on it which was not her true name, false chops and perhaps other false information. On arrival in Hong Kong, she had represented that her name was Luo Hui, which it was not, and gave a false date of birth.

4. She was charged and pleaded guilty to two offences : the first using an unlawfully obtained travel document and second, making a false representation to an Immigration Assistant lawfully acting in execution of his pass under the Immigration Ordinance. In respect of each offence, the magistrate imposed a sentence of 18 months' imprisonment and ordered each sentence to run concurrently. It is said that the sentences were manifestly excessive and wrong in principle and that the magistrate failed to have regard to sentences past in similar cases.

5. In R. v. Yu Wing Wut, Cri. App. No.346/1984, and in other cases, the Court of Appeal has said that where someone pleads guilty to possession of one forged travel passport with which that person attempts to leave Hong Kong, an appropriate sentence would be one of 18 months imprisonment. That, no doubt, is the starting point which the magistrate had in mind in this case.

6. I have this morning, in the other appeal, been referred to a series of cases where the courts have apparently taken the attitude that a lesser starting point is appropriate in cases where the holders of false travel documents are merely in transit, and I have been told by the prosecutor that the normal range of sentence imposed for such offences in the magistracies is one of six to nine months' imprisonment. I intimated then, as I do now, that I have some difficulty with the rationale for such a wide difference between transit cases and others. I emphasised the importance of the courts in this territory being seen to underscore co-operation between various jurisdictions in preventing and deterring travel on false passports.

7. The rationale, it seems to me, for making some reduction for transit cases is that in such cases false representations have not been made to authorities in Hong Kong. The prosecution in this particular case says that nonetheless this sort of case where somebody has made such a false representation but is staying in Hong Kong only on her way to another territory, and only then for a few days might, broadly speaking, nonetheless be viewed as a transit case, and that even in such cases, the range of sentence in fact imposed by magistrates is again one between six to nine months' imprisonment.

8. I think that where a false representation has been made with the travel document to authorities here, some distinction must be made between such a case on the one hand, and cases where people are simply sitting with a false travel document in a transit lounge. I think that such a case warrants more than nine months' imprisonment.

9. In all the circumstances, and given the apparent practice of the courts hitherto not to impose sentences as high as that imposed in this case for circumstances which resemble those in this case, I shall allow this appeal and instead of the sentences imposed by the magistrate in respect of each charge, I will substitute a sentence of 12 months' imprisonment. I shall order that each sentence shall run concurrently, making a total sentence of 12 months in all.

Representation:

Mr Wesley Wong, SADPP (Ag), of Department of Justice, for HKSAR

Mr H.Y. Wong, inst'd by Legal Aid Department, assigned by D.L.A., for the Appellant