HKSAR v. Jung Ki Boong

HCMA650/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.650 OF 2005

(ON APPEAL FROM STCC 8056 OF 2005)

---------------------

BETWEEN

----------------------

Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 28 September 2005

Date of Judgment : 28 September 2005

Date of Handing down Reasons for Judgment: 12 October 2005

--------------------------------------------------

REASONS  FOR  JUDGMENT

-------------------------------------------------

1.The appellant was convicted on his own plea to Charge (1), ‘Using a False Travel Document’ and Charge (2), ‘Making a False Representation to an Immigration Assistant’, contrary to sections 42(2)(b) and 42(1)(a) of the Immigration Ordinance, Cap. 115 respectively.  He was sentenced to 12 months’ imprisonment for each to be served concurrently.  He appeals against the sentence.

2.The facts upon which the appellant entered his pleas were as follows :

“On 23rd June 2005, the defendant presented for Immigration arrival examination on strength of Korean passport no. TM0486628 in name of CHA SOO KYUNG with date of birth 22nd July 1956.  As the authenticity of the said passport was in doubt, he was detained for investigation.
2.	Under caution, the defendant admitted that he was actually known as JUNG KI BOONG born on 21st January 1958.  He furthered that as he was not issued with a Korean passport after the expiry of his own Korean passport in 2001, he bought a Korean passport in name of JOUNG YOUNG BOO.  On 28th May 2005, he intended to travel to Taipei but he was refused entry and deported to Hong Kong with a fake Korean passport under the name of JOUNG YOUNG BOO and he posed himself as the same identity.  Later, he was removed to Bangkok.
3.	The defendant then travelled from Bangkok to mainland.  Later, the defendant met a middleman in mainland who offered to arrange him to come to Hong Kong.  Defendant agreed and was given the aforesaid Korean passport no. TM0486628, in name of CHA SOO KYUNG, born on 22nd July 1956.  Upon receipt, he was aware that all personal particulars recorded therein did not belong to him except the photo.
4.	Armed with the aforesaid passport, the defendant arrived in Hong Kong on 23rd June 2005.  He used the aforesaid Korean passport for Immigration arrival examination and represented the false identity to an Immigration Assistant (subject matter of both charges).”

3.As regards the magistrate’s reasons for sentence, these are the relevant portions :

“	6.	The Defendant is a 47-year-old Korean engaging in textile business in China.  In mitigation, counsel for the Defendant said the Defendant was declared bankrupt in Korean in 2001 and hence he was not allowed to leave Korea.  He therefore had to use a forged passport.  Defendant’s counsel further asked the court to consider that Defendant would have to server another term of imprisonment for offence relating to forged passport when he returns to Korea.
	Reasons for sentence
	7.	Using a false or forged travel document is a very serious offence.  In The Queen v Yu Wing-wut, Cr App No. 346/1984, the Court of Appeal adopted a starting point of 27 months’ imprisonment.  Later in The Queen v Bhagwant Singh-Padda, Magistracy Criminal Appeal No 1447/1988, Bewley J classified users of forged or false travel documents into 4 categories for the purpose of sentencing.  In R v Chan Shing Leong, Magistracy Appeal No. 1149/1996, Leonard, J followed the 27-month starting point.  In HKSAR v Pak Wan Lung, CACC 573/1998, the Court of Appeal having dealt with several decisions on sentence for using a forged travel documents, ranging from a starting point of 18 months to 27 months, selected the starting point of 27 months.  In HKSAR v Chau Kin Chau, HCMA 928/2003, Deputy High Court Judge Poon found that a starting point of 21 months for the offences of using a false travel document and making false representation to immigration officer was a correct one.
	8.	For the offences of making false representation to immigration officer, the authorities envisage a starting point ranging from 12 months to 18 months.  (e.gs. : 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;
	9.	I took 18 months’ imprisonment as the starting point for both charges.  For his plea of guilty, Defendant was given 1/3 discount.  The 2 charges related to the same event and hence the sentences were ordered to run concurrently.  The Defendant was therefore sentenced to a total term of 12 months.”

4.Before me, the appellant asks me to consider the fact the he resorted to travelling with a false passport because he was bankrupted in the Korean financial crisis, before which he was the president of a textile company.  He asks me to consider the fact that he has never committed any other previous offences.  He asks me to take into account the fact that when deported back to Korea upon the expiry of his sentence here, he will have to face another term of imprisonment over in Korea for exactly the same incident.

5.There is nothing to suggest what the appellant says about his personal circumstances is untrue.  But immigration offences of the kind in question are serious.  The brief facts also show that this is his second attempt to enter Hong Kong in like manner.  He agrees with me that if and when the Korean courts sentence him for the present incident, they can take into account the sentence that he will have served in Hong Kong.

6.In all the circumstances, there is no merit in this appeal.  There is no ground for criticism of the magistrate’s approach in sentencing the appellant.  The appeal is dismissed.

Ms Chan Yuet Yee Grace, SGC of Department of Justice, for HKSAR

Appellant in person