HKSAR v. Li Yuyu

HCMA782/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.782 OF 2005

(ON APPEAL FROM STCC 8667 OF 2005)

______________________

BETWEEN

______________________

Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 6 October 2005

Date of Judgment : 6 October 2005

Date of Handing down Reasons for Judgment : 27 October 2005

_________________________________

REASONS  FOR  JUDGMENT

_________________________________

1.The appellant was convicted on his own plea to two charges of ‘making a false representation to an immigration assistant’, contrary to section 42(1)(a) of the Immigration Ordinance, Cap.115.  He was sentenced to eight months’ imprisonment on each charge, of which two months are to run consecutively, making a total of 10 months’ imprisonment.  He now appeals against the sentence.

2.The admitted facts as summarized by the magistrate were as follows :

“The appellant admitted that on the 21 April 2005, he was holding a Chinese Permit in the name of Li Yuyu, born on the 14^th April 1951.  However, immigration records showed that he had come to Hong Kong under two different identities.

Later, under caution, the appellant admitted that in December 2002, he had paid RMb4,000 to a middleman, and about two months later, he received a Chinese permit in the name of Li Zizhuang, with date of birth 29^th June 1957, and he saw that all the personal particulars on this document did not relate to him, except the photograph.  On arrival examination in Hong Kong on the 28^th July 2003, he had represented this false identity to an immigration assistant, and was permitted to enter Hong Kong as a visitor.  He was later repatriated in November 2003.

In November 2003, he contacted a middleman again, and paid Rmb5,000.  He received yet another Chinese permit, this time in the name of Li Yongren, with date of birth 12^th November 1960.  He knew that all the particulars therein were not his, except for the photograph.  On 28^th February 2004, he used this permit to come to Hong Kong, and on arrival examination, he represented this false identity to the immigration assistant, and was permitted to enter and remain as a visitor.  He was repatriated again, in May 2004.

3.As regards the appellant’s background, she said :

“The appellant had nine previous convictions, including five for breach of condition of stay, and eight involving dutiable commodities or dangerous/controlled goods, and has been sentenced for up to two months imprisonment on various occasions.

The background report showed that the appellant is 54 years old, divorced, with four children aged 8 to 14, all living on the mainland.  His parents are in their 80’s, his father having suffered a stroke in 2001, and the appellant had borrowed Rmb20,000 for his medical expenses.  The appellant was diagnosed with nasal cancer in 2003, and as he could not afford the medical expenses, he came to Hong Kong.  However, the medical report from the Lai Chi Kok Reception Centre showed that the appellant had been treated on the mainland, and that ‘no nasopharyngeal soft tissue mass or bony erosion was noted’.”

4.She then went on to analyze the cases of HKSAR v. Pak Wan Lung, CACC573/1998, HKSAR v. Yim Lee Kuen, HCMA1187/2002, HKSAR v. Zhang Wei, HCMA513/2004 and HKSAR v. Li Xiao Feng, HCMA286/2003, and concluded that a starting point of 12 months was appropriate.  She gave the customary discount for the appellant’s plea, applied the totality principle and imposed the present sentence.

5.I cannot find any fault with the magistrate’s approach in sentencing the appellant.  In fact, all that the appellant can say before me today is that he has nasal cancer and that he entered Hong Kong with the sole purpose of earning some quick money for its treatment.  He asks me to consider the fact that he has a medical condition and hence to lower his sentence.

6.In my judgment, even if the appellant does have cancer, which his background report suggests has been treated, I do not see how it could constitute a factor on which this appeal should be allowed.

7.The appeal is without merit.  It is dismissed.

Mr LAI Kim-wah, Derek, SGC of Department of Justice, for the Respondent

The Appellant in person