The Queen v. Li Sui Pui

HCMA000479/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 479 OF 1991

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BETWEEN

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Coram: Hon. Barnes, J. in Court

Date of Hearing: 6 August 1991

Date of Delivery of Judgment: 6 August 1991

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JUDGMENT

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1. The appellant was convicted in the magistrate's court on two offences, one of making a false representation to an Immigration officer, contrary to Section 42 (1) (a) of the Immigration Ordinance, and the other of Counselling or procuring the furnishing of false particalars to a Registration Officer in contravention of the provisions of regulations made under the Registration of Persons Ordinance. In respect of the 1st offence, the Magistrate sentenced him to imprisonment for 9 months, and in respect of the 2nd to imprisonment for 6 months, and ordered that the sentences run consecutively.

2. The conduct of the appellant in relation to the 1st offence has been related in the judgment given in respect of his appeal against conviction. The 2nd offence arose in this way: when the appellant presented his travel document to an Immigration Officer at Lowu in commission of the 1st offence, he was told by the Immigration Officer to go to the appropriate office for the purpose of obtaining a Hong Kong Identity Card. As the appellant's travel document indicated that he was an eleven year old boy, he needed for the purposes of obtaining his identity card, the assistance of an adult. It was for that purpose that he counselled and procured the person named in the 2nd charge to furnish the false particulars, the subject of that charge. The person who was counselled and procured was charged with the substantive offence of furnishing the false particulars, and was jointly tried with the  appellant and at the conclusion of the trial convicted of the offence.

3. In sentencing that offender, the magistrate took into account his clear record and imposed a sentence of 6 months but ordered that it be suspended. In dealing with this appellant in respect of the 2nd offence, the learned Magistrate acted on the basis that the appellant had a conviction for an Immigration offence in 1985 and said, "this was relevant to determine the amount of discount to which he would be entitled as compared with the person with a clear record."

4. At the time the Magistrate sentenced the appellant he had every reason to believe that he did have a previous conviction for a similar offence, because a criminal record form shoring such particulars was put before him. It has been revealed to me, however, that criminal record form is misleading in that, although the appellant had been here in 1985 as an illegal immigrant he was not prosecuted, but was immediately repatriated to China.

5. It seems to me that if the learner Magistrate had known that he would not have imposed a sentence of 6 months imprisonment. The total sentences imposed on the appellant amounted to 15 months of custody. I do not think that there was anything wrong with the sentence of 9 months imposed in respect of the 1st offence nor do I think that the Magistrate was wrong to have imposed a consecutive sentence, although in the circumstances it may also thought that he could not have been criticised had he imposed a concurrent sentence. Be that as it may it seems to me that, had the Magistrate known what I know he would certainly not have a sentence of 6 months to run consecutively with the 9 months.

6. I, accordingly, allow the appeal to the extent the sentence of 6 months on the 2nd charge be reduced to 3 months, and the appeal is allow to that extent.

Representation:

Mr. A. Sham, S.C.C. for Crown.

Mr. A. Wong (Chan & Kong) for Appellant : LI Sui-pui