Read the full judgment text of HCMA 000875/2001 on BabelCite. This High Court CFI judgment was delivered on 3 October 2001 before V Bokhary J.
Criminal law – sentencing – false travel document – Immigration Ordinance (Cap 115) – use of false Portuguese passport to depart Hong Kong for Japan – guilty plea – appeal against sentence as too severe – mitigation – "foreignness" of offender – whether foreignness justifies downward adjustment of sentence – Court of Appeal's decision in HKSAR v. Felix Rohrer – held that foreignness does not automatically reduce sentence but may do so in an appropriate case depending on all the circumstances – foreignness is not an element calling for a specific and substantial discount unlike guilty plea or testimony for the prosecution (Attorney General v. Pedro Nel Rojas) – sentencing court primarily responsible for deciding whether to apply the factor and appellate courts slow to interfere – silence of sentencing court on a factor does not mean it was not considered (Dorrington v. Griff Fender; Lam Pak Chui v. Tsang Mei Yang) – held: foreignness does not justify reduction in this case – held: however, on prosecution's concession, physical medical condition, psychiatric condition, and difficult background of the appellant had not been sufficiently reflected in the sentence – appeal allowed to the extent of reducing sentence from six months' imprisonment to five months' imprisonment.
Legal issues: Whether the appellant's "foreignness" justifies a downward adjustment of his sentence · Whether the sentence should be reduced on grounds of the appellant's physical and psychiatric medical condition and difficult background
Outcome: Appeal allowed in part; sentence reduced from six months' imprisonment to five months' imprisonment.