HKSAR v. Lam Ka Wing

HCMA000056/2000

HCMA 56/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 56 OF 2000

(ON APPEAL FROM WSCC 15574/1999)

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Coram: Hon Beeson J in Court

Date of Hearing: 31 March 2000

Date of Judgment: 31 March 2000

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J U D G M E N T

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1. This Appellant pleaded guilty to Making a False Declaration for the Purpose of Procuring Marriage and also to an offence of Bigamy. Making a False Declaration is contrary to section 34(a) of the Crimes Ordinance, Cap. 200; the Bigamy charge is contrary to section 45 of the Offences Against the Person Ordinance, Cap. 212.

2. The brief facts, which the Appellant admitted, show that he surrendered to Immigration in 1999 with his wife who was an illegal emigrant. They wished to surrender for arrangement of the wife's imminent confinement and proved their relationship by producing a PRC marriage certificate. A record check revealed that the Appellant had contracted another marriage with a Filipina woman on 27 May 1993. The date of his marriage in China was 18 March 1993 and the "marriage" to the Filipino woman took place in Hong Kong on 27 May 1993. Under caution, the Appellant admitted that he had been in need of money and he agreed to enter the false marriage for a reward of $2,000.00 although he was aware that he would commit bigamy. On 7 May 1993, he filed the marriage notice with the Filipina woman and concealed his marriage to his present wife by falsely declaring that he was a bachelor. On 27 May 1993, the bigamous marriage was registered.

3. The Magistrate imposed a sentence of 3 months' imprisonment on each offence, the sentences to run concurrently and on appeal it was submitted that these offences had been punished too severely; that the Magistrate erred by failing to take into account that the offences were disclosed through the actions of the Appellant himself; that the Appellant was remorseful and co-operative; that he committed the offence in May 1993 when he was financially hard pressed; that he had no previous conviction of a similar nature and that he had a favourable background report. It was suggested that a suspended sentence or a fine could be a proper sentencing option.

4. It was submitted also that the Magistrate had erred by suggesting that the Appellant, in committing the offence, set out to deceive the authorities by entering into a bogus contract to effect the illegal entry into, and an unlawful remaining in, Hong Kong of Ms Luat, who was the Filipina woman. It was suggested that the Magistrate was wrong to take this into account because the Appellant had not been charged with any offence involving the deceit of the immigration authorities.

5. In sentencing, the Magistrate was well aware of the facts of the case, in particular that it was Appellant who accompanied his pregnant wife to the Immigration Department. He had information on the background of the Appellant from reports which described Appellant as a responsible and caring husband and father. He knew that Appellant said he committed the offence because of financial hardship, and he accepted also that it was not the usual offence of bigamy because there was no question of his practising any deception on Madam Luat, or abandoning his wife. He accepted that this was an economic transaction because of Appellant's financial position. However, the Magistrate correctly noted that the offence involved a deception of the authorities by entering into a bogus marriage contract, which would have the effect of enabling Ms Luat to remain in Hong Kong.

6. There is no suggestion that the Magistrate was treating this Appellant as being involved in a conspiracy to do that. But that was in fact, the effect of the bogus marriage contract and it could not have escaped the Appellant's attention, given that this marriage took place so close upon his own marriage in China, that he had no justification for marriage to a woman he presumably did not know at all.

7. The Magistrate considered that a proper sentence after trial would have been 9 to 12 months, given that the bogus transaction was committed for monetary gain. He took into account the guilty plea, the lapse of time since the commission of the offence and the Appellant's domestic situation. He then passed the sentences of 3 months imprisonment. It is difficult to gauge what the Magistrates actual starting point for sentence was, but given that he considered the sentence would normally be in the range of 9 to 12 months for an offence involving monetary gain, he gave a very substantial discount.

8. I cannot see any justification for upsetting the Magistrate's sentence of imprisonment in this case. It has been suggested that this is an offence for which the imprisonment at the very least should be suspended. However, I disagree with that. An offence of this nature, particularly one committed for monetary gain is a serious offence which is aimed at deceiving the authorities, as well as being an offence against society in general.

9. For these reasons, the appeal against sentences is dismissed.

Representation:

Ms Agnes Chan, SGC, for DPP

Mr Wong Po Wing, instructed by Messrs Stephen Lo & P Y Tse, for the Appellant