HKSAR v. Luo Weixiong

HCMA1115/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1115 OF 2005

(ON APPEAL FROM ESCC 4169 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 on his own plea of offences charged as follows :

(1) using a false travel document, contrary to section 42(2)(b) of the Immigration Ordinance, Cap. 115 (“the Ordinance”);

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

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

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

3.Allowing for the appellant’s guilty pleas, the magistrate imposed sentences of 15 months’ imprisonment for each offence.  Because the offences the subject of Charges 1 and 2 involved the same facts, i.e. the use by the appellant of a false China Travel Permit by way of its production to an Immigration Officer so as to allow the appellant to gain entry to Hong Kong on 7 July 2004, the magistrate ordered that the sentences imposed in respect of those offences run wholly concurrently. 

4.The appellant used the same false travel document to gain entry again to Hong Kong on 22 September 2005.  Again, he produced it to an Immigration Officer, and the magistrate for the same reasons ordered the sentences imposed in respect of the offences the subject of Charges 3 and 4 which arose out of that incident also to be served wholly concurrently. 

5.The magistrate then considered the totality of sentence.  The same false travel document had been used on both occasions.  The magistrate concluded that a considerable overlap of sentence was appropriate in the circumstances of the offences and ordered that only three months of the sentences imposed in respect of the offences, the subject of Charges 3 and 4 be served consecutively to the sentences imposed in respect of the Charges 1 and 2.  That arrived at a totality of 18 months’ imprisonment.  

6.The appellant does not dispute the sentences.  He does not suggest that they are wrong either in principle or that they are manifestly excessive.  In my view, he is right not to do so.  If anything, particularly as to the degree of concurrence between the sentences, they were lenient. 

7.The appellant instead relies upon humanitarian circumstances to seek a further reduction in his sentence.  Those circumstances relate to his family.  His mother is very old, his wife is ill, and his children are wholly dependant upon him.  While he is in Hong Kong, they are without support in China.  

8.Whilst one can sympathize with the circumstances of many illegal immigrants who arrive in Hong Kong from China, the law is quite clear.  It is only in exceptional circumstances that humanitarian considerations can result in a reduction of sentence.  The appellant’s circumstances are not exceptional.  The difficulties his family will face unfortunately are very common to the families of offenders imprisoned in Hong Kong. 

9.There is no basis for any further reduction in sentence and the appeal is dismissed. 

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

Appellant in person