HKSAR v. Cortez Emily Bisoy

HCMA000457/2002

HCMA457/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.457 OF 2002

(ON APPEAL FROM KTCC 2087 OF 2002)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 26 June 2002

Date of Judgment: 28 June 2002

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J U D G M E N T

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1.This is an appeal against sentence only. The appellant was convicted on her own pleas for offences of :

(1) using a false travel document, contrary to section 42(2)(b) of the Immigration Ordinance, Cap.115 ("the Ordinance"), for which she was sentenced to eight months' imprisonment;

(2) two offences of making a false representation to an Immigration Officer, contrary to section 42(1)(a) of the Ordinance, in respect of each of which she was sentenced to eight months' imprisonment; and

(3) breaching a deportation order, contrary to section 43(1)(a) of the Ordinance, for which she was sentenced to 18 months' imprisonment.

All sentences were ordered to run concurrently, that resulted in a totality of sentence of 18 months' imprisonment. The appellant appeals against each of those sentences and their totality on the basis that they are too severe.

2.The facts of the offences were as follows : The appellant originally came to Hong Kong legally in 1990 and worked as a domestic helper. A deportation order for life was issued against her in 1997 after she was convicted of offences in respect of her involvement in a false employment contract case and of making a number of false representations to an Immigration Officer. She was deported to the Philippines in May 1997 as a result of those offences but returned to Hong Kong in October 1997 in breach of that deportation order, which forms the basis of the third charged offence in the present case. On that occasion, she used her cousin's passport with her own photograph substituted in it, which forms the basis of the first charged offence in the present case. Upon entering Hong Kong, she also made false representations as to her identity to an Immigration Officer, which forms the basis of the second charged offence. In order to prolong her stay in Hong Kong, in March 2000, the appellant falsely represented to an Immigration Officer she was to become employed as a domestic helper, that forms the basis of the fourth charged offence.

3.I will deal firstly with the sentence imposed in respect of the appellant's breach of her deportation order.

4.It may well once have been the case that this court regarded the appropriate sentence after plea for the breaching of a deportation order to be a sentence in the vicinity of 12 months' imprisonment or even less : see HKSAR v. Vu Thi Van Anh, HCMA289/2000; HKSAR v. Nguyen Thi Thoa, HCMA110/1999; R. v. Hoang Dinh Huy, HCMA1530/1996; and HKSAR v. Cheema Asghar Sajjad, HCMA85/2000. But in recent years, those sentences have been substantially increased : see HKSAR v. Luu Dinh Huy, HCMA690/1997; HKSAR v. Do Thi Hue, HCMA873/2001; and HKSAR v. Nguyen Chi Trung @ Dong Van Thanh, HCMA1095/2001.

5.In the last mentioned case, Beeson J said :

"A sentence for breach of a deportation order, comparable to that for a plea to unlawfully entering and remaining, for a first charge, could properly be 18 months' imprisonment. Given the maximum sentence and the serious nature of the offence it would be difficult to fault sentences that were higher than 16 months."

With that I agree. Indeed, that the legislature intended the offence of breach of a deportation order to be a serious offence and further, a more serious offence than unlawfully remaining in Hong Kong is perhaps evident from the maximum penalty being one of seven years' imprisonment as compared to the maximum sentence of three years' imprisonment for unlawfully remaining in Hong Kong.

6.That is sensible when it is remembered that the breach of a deportation order requires a deliberate circumvention of an order directed at the offender personally. In my view, a sentence of 18 months' imprisonment after plea for such an offence cannot be criticised.

7.I turn now to the sentence imposed in respect of the appellant's use of a false travel document.

8.As Stock J (as he then was) in HKSAR v. Chu Man [1999] 1 HKC 189 at 190 :

"In R v Yu Wing Wut, Crim App 346/84, and in other cases, the Court of Appeal has said that where someone pleads guilty to possession of one forged travel passport ... 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."

9.In the present case, the magistrate took a starting point of sentence of 12 months' imprisonment. That can hardly be said to be excessive.

10.I turn now to the sentence imposed in respect of the two offences of making false representations to Immigration Officers. On each of the two charged occasions, the appellant told lies to the Immigration Officer concerned, once as to her identity and once as to her potential employment status. The magistrate said in respect of these offences :

"... It was clear that the appellant committed these offences in order to stay and work in Hong Kong, and that she did eventually stay and work here for a substantial period of time since October 1997. Under these circumstances, I adopted 12 months' imprisonment as the appropriate starting point for the sentence in respect of each of these two charges."

11.It is true that a considerable range of sentences have been considered appropriate by the courts for offences of this nature. That must be so because the seriousness of the offence can vary from the merely trivial to those directed at deceiving the Immigration Officer concerned, so as to obtain unlawful entry or exit from Hong Kong or the unlawful continuing stay of a person in Hong Kong.

12.There can be no guidelines so far as sentence is concerned in respect of such offences. But in my view, any such misrepresentation to an Immigration Officer directed at obtaining the illegal entry of the offender into Hong Kong or at maintaining their unlawful presence in Hong Kong must be towards the more serious end of the scale. In such circumstances, a starting point of sentence of 12 months' imprisonment cannot be criticised.

13.In the present case all sentences were ordered to be served concurrently. That resulted in a total sentence of 18 months' imprisonment. That cannot be criticised. Indeed, that totality of sentence was recognized as being lenient by the magistrate and was made deliberately so because of the personal circumstances of the appellant. She, at the time of sentence, had a one month old baby which had been born prior to her arrest. In this regard, the magistrate said :

" I had however considered the situation of the appellant's baby daughter. If the appellant adhered to her decision to have the baby with her inside the prison, it would have meant that the baby would stay for a long time inside prison. If she eventually decided to let the Social Welfare Department take care of the baby, it would have meant that the baby had to separate from her mother for a long time. Neither situation was desirable. Hence, as an act of mercy, and bearing in mind that 18 months' imprisonment was already a lengthy prison term, I ordered the sentences for these 4 charges to run concurrently with one another."

14.In other words, the magistrate had given the appellant significant humanitarian consideration in arriving at the totality of sentence. The fact that a foreign female offender has a young child or baby at the time of sentence is not necessarily a matter which gives rise to humanitarian considerations and the magistrate in giving the appellant some credit in this regard as he was entitled to do, so far as the totality of her sentence was concerned, acted with considerable lenience.

15.The sentences imposed by the magistrate cannot in any way be said to be too severe. The appeal against sentence is dismissed.

Representation:

Mr Jackson Poon, SADPP(Ag), of the Department of Justice, for the Respondent

Appellant in person