HKSAR v. Zhang Guiren

HCMA 396/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 396 OF 2005

(ON APPEAL FROM STCC 4853/2005)

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BETWEEN

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Before : Deputy High Court Judge Barnes in Court

Date of Hearing : 21.6.2005

Date of Judgment : 21.6.2005

Date of Handing down Judgment : 22.6.2005

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J U D G M E N T

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Background

1.The Appellant pleaded guilty to two offences, namely “Using a false travel document for the purpose of Part II of the Immigration Ordinance”, contrary to section 42(2)(b) of the Immigration Ordinance, Cap. 115 (1^st charge); and “Making a false representation to an immigration assistant acting under or in the execution of Part II of the Immigration Ordinance”, contrary to section 42 (1)(a) of the said Immigration Ordinance (2^nd charge). He was sentenced to 12 months imprisonment for the 1^st charge, 4 months for the 2^nd charge, both sentences to run concurrently, making a total of 12 months.

2.The Appellant appealed against the sentences. I dismissed his appeal after hearing submissions. I now give my reasons.

Admitted facts

3.The admitted facts disclosed that on 14.4.2005, the Appellant presented for arrival clearance at China Ferry terminal with a Chinese Permit bearing the name of QIN YONG MING (秦永明) with the birthday date being 2^nd October 1970. Upon checking it was revealed that the Appellant had been to Hong Kong under another identity. The matter was investigated. Under caution the Appellant admitted he was property know as ZHANG GUIREN and his birthday was 5^th November 1971. He has been to Hong Kong under his true identity in 2004 and was repatriated to the Mainland China after legal proceedings. The Appellant also disclosed that he paid an agent RMB4,000 to arrange for the false travel document. He admitted that apart from the photo affixed on the travel document, all other personal particulars recorded thereon did not relate to him.

Reasons for sentence

4.The learned magistrate in his “Statement of findings” stated that there was no mitigation apart from the Appellant’s plea. He took a starting point of 18 months and reduced it to 12 for the 1^st charge. For the 2^nd charge he took a starting point of 6 months and reduced it to 4.

5.The learned magistrate also has this to say (at page 12 of the appeal Bundle):

“I have been too lenient. The Court of Appeal in HKSAR v Pak Wan Lung confirmed that the starting point of using a false travel document should be 27 months. See also HKSAR v Sthapak Rakesh Kumar in which a sentence of 15 months (after plea) was upheld on appeal.”

Grounds of Appeal

6.The Appellant, who is not legally represented, advanced two grounds of appeal. He referred to a letter he had earlier written to me, setting out both grounds. He acknowledged that the advice he received from the Legal Aid Department was that the sentences imposed were not manifestly excessive. He told me he had at one time contemplated abandoning the appeal, but as his family circumstances were getting worse he decided to continue with the appeal, hoping for leniency from the court. He informed me that his parents are in their 70’s, his children are young and the family is facing particular hardship. That was the first ground advanced.

7.The second ground advanced by the appellant was that he had ‘owned-up’ and admitted the offence while the matter was still under investigation. He felt that he should get a greater discount.

Judgment

8.Having considered the facts of this case; the learned magistrate’s ‘Statement of Findings’; the personal background of the Appellant; and the cases of HKSAR v Pak Wan Lung CACC 573/1998 and HKSAR v Rakesh Kumar Sthapak [2005] 1 HKLRD 643, together with the case of HKSAR v Zhang WeiHCMA 513/2004 (brought to my attention by Ms. Mary Sin for the Respondent), I am of the view that the sentences could not be said to be manifestly excessive. If anything, they are indeed, as the learned magistrate has said, on the lenient side.

9.On the facts before me, once it was revealed that the Appellant had used another identity to come to Hong Kong in 2004, it is a matter of time that his criminal act would come to light – either he has used a false travel document and made false representation to the Immigration Assistant in 2004, or in 2005. His admission no doubt made it slightly easier for the prosecution. However, this is not a case in which the Appellant had gone through immigration undetected and yet voluntarily surrendered himself to the authority to admit his wrongdoing. There is nothing in his case warranting more than the usual 1/3 discount.

10.Family hardship which is usually attendant upon the conviction is to be viewed as part of the price an accused has to pay for his/her crime. Family hardship should be disregarded when the offence involved is serious: see Sentencing in Hong Kong 4^th edition, at pages 309 –340 and the cases cited therein.

11.The family circumstances of the Appellant are not such that amount to special reasons or humanitarian grounds to reduce the sentences imposed.

12.For these reasons I dismissed the appeal.

Ms. Mary SIN, Senior Assistant Director of Public Prosecution of the Department of Justice for the Respondent

Appellant ZHANG Guiren in person