HKSAR v. Xie Yazhong

HCMA975/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 975 OF 2005

(ON APPEAL FROM ESCC 3541 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 5 January 2006

Date of Judgment : 5 January 2006

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J U D G M E N T

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1.This is an appeal against sentence only.

2.The appellant was convicted in Eastern Magistracy on his own pleas of offences charged as follows :

(1) dealing with goods to which the Dutiable Commodities Ordinance, Cap. 109 applies, contrary to section 46(3) of that Ordinance;

(2) obstructing a member of the Customs & Excise Service, contrary to section 16(8) and section 46(3) of the same Ordinance;

(3) breach of the condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115;

(4) making a false representation to an Immigration Officer, contrary to section 42(1)(a) of the same Ordinance;

(5) using a false travel document, contrary to section 42(2)(b) of that Ordinance; and

(6) making a false representation to an Immigration Officer, contrary to section 42(1)(a) of the Ordinance.

He was sentenced to four months’ imprisonment for the 1^st charged offence and two months’ imprisonment on each of the 2^nd and 3^rd charged offences.  Those sentences were to run concurrently.  He was sentenced also to 12 months’ imprisonment on each of the 4^th, 5^th and 6^th charged offences.  The sentences for the 4^th and 5^th charged offences, which related to different unlawful entries into Hong Kong in 2003 and 2005 respectively, were ordered to run consecutively to each other and to the other sentences imposed.  The sentence imposed on the 6^th charged offence was ordered to run concurrently with those imposed in respect of the 4^th and 5^th charged offences.  That resulted in a total sentence of two years and four months’ imprisonment.

3.Each of those sentences represented a discount of 1/3 from the magistrate’s starting points of sentence so as to reflect the appellant’s pleas of guilty.

4.The appellant was initially arrested and investigated for the offences, being Charges 1, 2 and 3, which occurred on the day of his arrest, 20 August 2005.  Whilst being investigated for those offences, the offences the subject of Charges 4, 5 and 6 were disclosed.  Offences 5 and 6 related to his gaining unlawful entry into Hong Kong on the present occasion.  Offence 4 related to his earlier unlawful entry into Hong Kong in 2003. 

5.The unrepresented appellant now complains the sentences in their totality are manifestly excessive.  He complains further that the starting point of sentence in respect of the immigration offences, which was 18 months, was too high.  

6.The facts of the offences are as follows.  On 9 December 2003, the appellant came to Hong Kong from Mainland China using a bogus travel permit which he had secured from the Chinese authorities by using the particulars of another person together with his own photograph.  He produced that document to a Hong Kong Immigration Officer to gain entry into Hong Kong (Charge 4).

7.After being allowed entry, he subsequently returned to the Mainland.  He then obtained a further travel permit on the Mainland using the same method, that is, by providing another person’s particulars together with his own photograph, and on 20 August 2005 returned to Hong Kong after producing this false travel permit to a Hong Kong Immigration Officer (Charges 5 and 6).

8.Once inside Hong Kong, on 26 August 2005, the appellant was found by two Customs Officers at a street in Wanchai selling cigarettes upon which the duty had not been paid (Charge 1).

9.When the Customs Officers revealed their identities and attempted to search the plastic bag and carton box which contained cigarettes, the appellant tried to run away.  The two Customs Officers pursued him, and after a brief struggle, subdued him and arrested him (Charge 2).

10.The condition of the appellant’s stay in Hong Kong when he was allowed entry on 20 August 2005 was that he was not to take up employment or conduct any business activity.  His cigarette selling breached that condition (Charge 3).

11.The magistrate, in his Reasons for Sentence, said this of the appellant’s immigration offences :

“The Defendant by his actions had demonstrated a disregard bordering on contempt for the laws of Hong Kong generally and immigration laws in particular.”

With those comments I entirely agree.

12.At the time of sentencing, in adopting his starting point of sentence, the magistrate had said also :

“If you had been convicted after trial of the charges in relation to the use of false travel documents and false identities, you would have been sentenced to 18 months’ imprisonment on any one of those charges.  If you had been convicted after trial of the charges in relation to the smuggled cigarettes and breach of condition of stay, you would have been sentenced to not less than 6 months’ imprisonment in that case on those charges.”

13.In my judgment, the magistrate’s starting point of sentence for the immigration offences of 18 months’ imprisonment cannot be criticised nor can his starting points in respect of the other offences.  Indeed, given that the underlying criminality of the appellant in this case involved repeated use of forged documents and the undermining of the integrity of Hong Kong’s borders, the starting point of sentence in respect of the immigration offences could have been higher.

14.If the appellant had been charged with unlawful entry and remaining in Hong Kong as he could have been, so far as the offences the subject of Charges 4 to 6 are concerned, he could have expected a sentence after plea of 15 months’ imprisonment. 

15.I cannot see that the same criminality which additionally involved the use of forged documentation should attract a lesser sentence.  For that reason alone, the starting point of sentence in respect of the immigration offences could not be said to be too severe. 

16.Taking into account also the history of the appellant, in my view, the magistrate was perfectly entitled to adopt the starting points of sentences as he did.

17.The totality of two years and four months’ imprisonment is a high sentence.  But given that the appellant has come unlawfully into Hong Kong using false documentation on three separate occasions (he did so also additionally to the present offences on a previous occasion in 2001), I am unable to say that the overall sentence is manifestly excessive.

18.The appeal is dismissed.

Mr Stewart Hau, SGC of the Department of Justice, for HKSAR

Applicant in person, present