HKSAR v. Bodomo, Marissa Flores

HCMA 343/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 343 of 2005

(ON APPEAL FROM STCC 2253 of 2005)

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BETWEEN

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Before: Deputy High Court Judge To in Court

Date of Hearing: 13 May 2005

Date of Judgment:  13 May 2005

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J U D G M E N T

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Introduction

1.The Appellant pleaded guilty to four charges of furnishing false information to an immigration assistant or immigration officer, contrary to section 42(1)(a) of the Immigration Ordinance, Cap 115 and one charge of furnishing false information to a registration officer, contrary to section 19(2C) of the Registration of Persons Ordinance, Cap 177.  She was sentenced by a learned magistrate to 8 months’ imprisonment for each of the four immigration offences (i.e. 1^st, 2^nd, 4^th and 5^th Charges) and 2 months’ imprisonment for the registration offence (i.e. 3^rd Charge).  All sentences are to run concurrently, making a total sentence of 8 months’ imprisonment.  Against those sentences, the Appellant now appeals.

2.The Appellant is a Filipino woman.  She came to Hong Kong to work as a domestic helper since 1996.  Her work visa expired in January 2003.  She was introduced to a Ms Woo who offered to prepare a bogus employment contract for her for a reward of $18,000 to enable her to apply for an extension of stay.  On 2 January 2003, the Appellant applied for permission to stay claiming to an immigration assistant that she had secured a new contract of employment with Ms Woo (1^st Charge).  Subsequently, the Appellant cancelled the application as Ms Woo was unable to provide the documents required by the Immigration Department.  On 18 February 2003, the Appellant applied to the Immigration Department again with another set of bogus employment contract and supporting documents provided by Ms Woo.  This time, the Appellant claimed to the immigration officer that she would work for a Mr Woo (2^nd Charge).  She was granted permission to stay until 18 February2005.

3.On 10 February 2004, the Appellant applied for and obtained a Hong Kong identity card.  In her application, she gave the same work address as that stated in the bogus employment contract but in fact she had never worked there (3^rd Charge).

4.During her extension of stay, the Appellant travelled in and out of Hong Kong.  On her last arrival on 13 February 2005, she falsely claimed to an immigration assistant at the immigration check point that she was still working under the same bogus employment contract (Charge 4).

5.On 18 February 2005, upon expiry of her work visa, the Appellant applied for an extension of stay by falsely representing to an immigration assistant that her previously claimed bogus employment was terminated on 17 February 2005 (Charge 5).

The starting point

6.The learned magistrate adopted a starting point of 12 months’ imprisonment for the immigration offences, quoting the case of HKSAR v Yim Lee-kuen HCMA 1187/2002, HKSAR v Lin Pei Luan HCMA 373/2003 and HKSAR v Li Xiao Feng HCMA 286/2003 in which starting points ranging from 12 to 18 months’ imprisonment were adopted.  He gave the usual one-third discount and sentenced the Appellant to 8 months’ imprisonment.  For the registration offence, the maximum penalty is 12 months’ imprisonment.  The learned magistrate adopted a starting point of 3 months’ imprisonment and sentenced the Appellant to 2 months’ imprisonment. He considered the offences arose out of the same transaction and ordered all sentences to run concurrently.

7.Ms Sin, counsel for the Respondent, helpfully referred me to a number of cases which can be segregated into two lines of authorities.  The first line of authorities concerned the use of forged travel documents and misrepresentation to an immigration officer in connection with such forged travel documents.  The first one in this line of authorities is The Queen and Yu Wing-wut, CA 346 of 1984.  In this case, the appellant pleaded guilty to possession of a forged travel document when leaving Hong Kong at the Kai Tak International Airport.  The Court of Appeal held 18 months’ imprisonment appropriate.

8.In HKSAR v Chu Man [1999] 1 HKC 189, the appellant travelled to the United States from the mainland.  She produced a forged passport while transiting Hong Kong.  She pleaded guilty to using an unlawfully obtained travel document and to making a false representation to an immigration assistant.  Counsel sought to distinguish The Queen and Yu Wing-wut on the basis that this case is one of transit.  Stock J, as he then was, in imposing a sentence of 12 months’ imprisonment observed:

“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.”

9.In HKSAR and Cortez Emily Bisoy [2002] 2 HKLRD 762, a Filipino domestic helper used a false passport to enter Hong Kong and subsequently used the same false passport to apply for an extension of stay.  She pleaded guilty to two offences of making false representation to an immigration officer.  Deputy Judge McMahon, as he then was, held that 12 months’ imprisonment for each offence was appropriate.

10.In HKSAR v Yim Lee-kuen, HCMA 1187 of 2002, the appellant pleaded guilty to, inter alia, two offences of making false representations to an Immigration Officer by producing a false two-way permit.  Deputy Judge McMahon, as he then was, held that 18 months’ imprisonment was appropriate for each of the two offences.

11.The second line of authorities concern misrepresentation to immigration officers which does not involve use of false travel documents.  The leading case in this line of authority is HKSAR and Saranilla Corazon C, HCMA 944 of 1997.  In this case, a Filipino domestic helper pleaded guilty to two charges of making false representation to an immigration officer.  She produced two false letters to deceive the Immigration Authority first for remaining and then for extension of her stay in Hong Kong for the purpose of seeking employment.  Her sentence of 6 months’ imprisonment was reduced to 4 months on appeal.  Yeung J, as he then was, stated his reasons as follows:

“I am given to understand that when dealing with offences of making a false representation to Immigration Officers involving forged travelling documents and on a plea of guilty, a sentence of six months’ imprisonment was considered to be appropriate.  I am of the view that in similar offences not involving forged travelling documents but forged letters of support, perhaps a lenient view ought to be taken.”

12.The next case is HKSAR and Mijares Marriza G, HCMA 1061 of 1997.  The facts in this case are very similar to those in Saranilla Corazon C.  Gall J referring to Yeung J’s above judgment and reduced the appellant’s sentence to 4 months’ imprisonment for each charge.

13.In HKSAR v Muhammad Yousaf, HCMA 440 of 1998, the appellant pleaded guilty to three charges, the second of which was making false representation to an immigration officer.  The facts of the case were not mentioned in the report.  Nguyen J reduced the sentence to 4 months’ imprisonment, quoting The Queen and Tsang Chiu-sing, MA 646 of 1993.  Tsang Chiu-sing, was about a Hong Kong resident in possession of a false Kampuchean passport for convenience in doing business in Kampucha and not for the purpose of illegal stay or work in Hong Kong.

14.In HKSAR v Muhammad Waheed, HCMA 1179 of 2004, the appellant was an illegal entrant but falsely claimed to be an overstayer.  He pleaded guilty to unlawfully remaining in Hong Kong and to making false representation to an immigration officer.  Deputy High Court Judge Wright upheld a sentence of 4 months’ imprisonment for the second offence, saying that it was “in accordance with sentencing practice,” but no authority was cited.

15.While not disputing that the present case does not fall within the first line of authorities as no false travel document is involved, Ms Sin sought to argue that the starting point in Saranilla Corazon C was wrongly decided.  She submitted that in that case, Yeung J, as he then was, was not assisted with the first line of authorities which suggested that the appropriate sentence for making false representation with a forged travel document on a plea of guilty should be about 18 months’ imprisonment and that 6 months’ imprisonment was exceptional and confined to transit cases or for exceptional cases such as Tsang Chiu-sing.  She submitted that Yeung J’s understanding that the sentence of 6 months’ imprisonment was appropriate for making false representation to immigration officers involving forged travel documents was misconceived and should not be followed.  As for the other authorities in the second line of authorities, she submitted that the facts in Muhammad Yousaf were not clear, while no authority has been cited in v Muhammad Waheed in respect of the sentencing practice.

16.Back in late 1980s and early 1990s, the courts of Hong Kong were loaded with cases concerning possession and use of forged identity cards or identity card belonging to another or false travel documents and misrepresentation to immigration officers.  These offences attract like punishment.  For false identity card cases, the leading authority is The Queen and So Man King, [1989] 1 HKLR 142 which set the tariff of 15 months’ imprisonment on a plea of guilty.  The typical feature in these cases is that the defendant was an illegal immigrant who came to Hong Kong for employment, which affected our local employment market.  The facts in forged passport cases varied from case to case.  In The Queen and Bhagwant Singh Padda MA 447 of 1988, the court identified four different categories of various degree of culpability.  The customary range is 6 to 18 months’ imprisonment for an accused who has the document for his own use (see R v MD Khasru Mia MA 1057 of 1995).   For those who committed the offence while in transit, they usually attract a sentence towards the lower end of the scale of between 6 to 9 months’ imprisonment (see Bhagwant Singh Padda MA 447 of 1988 and the post Saranilla Corazon C decision of Chu Man, [1999] 1 HKC 189). 

17.In that sort of setting, it would be very ludicrous to suggest that Yeung J, as he then was, with his standing and experience, would have overlooked that the usual tariff for making a false representation to immigration officer involving forged travel documents on a plea of guilty was 15 months’ imprisonment.  There must be an underlying rationale in his dicta.  Though Yeung J did not expressly say so in his judgment, I think he must have compared the culpability of an accused who made a false representation which did not involve forged travel documents with that of an accused who did so involving forged travel documents while transiting Hong Kong and considered the level of culpability of the former marginally lower than that of the latter.  That was why he quoted the tariff of 6 months’ imprisonment and not the well-known tariff of 15 months’ imprisonment. 

18.I would agree with such an assessment of culpability.  The tariff of 15 months’ imprisonment is appropriate for an offender who possessed or used a forged travel document as the offence involves an international dimension and concerns comity of nations or for an offender whose entry into Hong Kong would adversely affect our local employment market and social conditions. The offence for making a false representation in that connection should be treated similarly.  However, if an offender had a valid travel documents to come to Hong Kong and whose stay in Hong Kong would not have any adverse effect on the local employment market and social conditions, then his culpability is significantly reduced.  For a foreign domestic helper coming to Hong Kong with a valid travel document to take up employment which local workers do not wish to take up, his or her entry would not involve any international dimension and would not adversely affect the local employment market.  In the circumstances, I consider 6 months’ imprisonment an appropriate starting point and 4 months’ imprisonment an appropriate sentence after plea.  Rightly or wrongly, the starting point of 6 months’ imprisonment in Saranilla Corazon C has been adopted or effectively followed as demonstrated by the cases in the second line of authorities.  I agree with that starting point and do not think this is an occasion or the venue to review it.

The appropriate sentences

19.The authorities relied on by the learned magistrate are cases of making false representation involving false travel documents.  They belong to the first line of authorities and are inappropriate.  The magistrate was wrong in law to have adopted a starting point of 8 months’ imprisonment for the 1^st, 2^nd, 4^th and 5^th Charges.  The appropriate sentences should have been 4 months’ imprisonment in respect of each offence.  The registration offence should also attract a like starting point and a like sentence.

20.The first two offences may be said to have arisen out of the same transaction and the sentences should be made concurrent.  The third offence arose a year after the first two offences and should have been made consecutive.  The fourth and fifth offences were committed within 5 days of one another and two years after the first and second offences, these sentences should have been made concurrent to one another but consecutive to the other sentences.  The learned magistrate was also wrong in principle to have ordered all sentences to run concurrently.  However, having regard to totality, I consider a total sentence of 8 months’ imprisonment as originally imposed by the magistrate appropriate.

Conclusion

21.Accordingly, I allow the appeal by setting aside the sentences as awarded by the learned magistrate and substituting them with sentences of 4 months’ imprisonment for each offence.  The sentences in the first, second and third charges shall be served concurrently.  The sentence in the fourth and fifth charges shall also be served concurrently with each other but consecutive to the sentence in the first three charges.

Ms Mary Sin, Senior Assistant Director of Public Prosecutions, for the Respondent

Mr Peter K T Chung, instructed by M/s Ellen Au & Co, for the Appellant