HKSAR v. Mai Li Chan

HCMA 1100/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1100 OF 2005

(ON APPEAL FROM KTCC 6649/2005)

____________

BETWEEN

____________

Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 9 December 2005

Date of Judgment: 18 January 2006

______________

J U D G M E N T

______________

1.This is an appeal against sentence.  The Appellant had pleaded guilty to one charge of making a false representation to an immigration assistant in September 2004 contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115.  She was sentenced to 15 months’ imprisonment.

2.In September 2005, the Appellant after completing a sentence of two months’ imprisonment for breach of condition of stay and dealing in dutiable goods was discovered by the authorities to have entered Hong Kong in September 2004 as a visitor from the mainland under a false identity, i.e. using a falsely obtained two-way permit.  She had on that occasion been convicted of a breach of condition of stay and dealing in dutiable goods and had been sentenced to 3 months’ imprisonment.

3.The learned Magistrate, after considering the case of Yim Lee Kuen, HCMA 1187 of 2002, decided that he saw no reason why the defendant should be treated any differently from someone who simply sneaked into Hong Kong and remained unlawfully and therefore the learned Magistrate imposed a sentence of 15 months’ imprisonment.

4.Mr Hung, counsel for the appellant submitted that the learned Magistrate was wrong to adopt the sentencing guideline in HKSAR v. Yim Lee Kuen as it only applies to repeat or persistent offenders and that in all the circumstances bearing in mind the other cases he cited that the sentence is manifestly excessive.

5.Mr Hung also submitted that in view of the fact that the appellant was not a repeat or persistent offender and her presence in Hong Kong did not affect the local employment market or social conditions, the appellant should therefore only be sentenced at most with a starting point no higher than 12 months.

6.Miss Chan, counsel for the respondent, however, correctly pointed out that the appellant in the present case having entered Hong Kong with a false identity had committed the offence of “dealing in goods to which the Dutiable Commodities Ordinance” applies and had been sentenced to a term of 3 months’ imprisonment.  The appellant was subsequently repatriated in November 2004 having served her sentence but returned to Hong Kong again in July of this year and was arrested in August charged with a similar offence of dealing in goods to which the Dutiable Commodities Ordinance applies and with another charge of breached of condition of stay.  So rather than as Mr Hung submitted that there is no aggravating features in this case, the appellant upon gaining entry into a Hong Kong using her false identity had in fact committed a criminal offence, which is an aggravating factor.

7.Mr Justice McMahon in the case of HKSAR v. Yim Lee Kuen HCMA 1187/2002 did a fair analysis of the sentencing and underlying principle for sentencing of offenders who have committed the offence of unlawful remaining in Hong Kong contrary to section 38 of the Immigration Ordinance, Cap. 115 and the offences involving the use of falsified passport and false two-way permit, both contrary to section 42 of the Immigration Ordinance.  I adopt what Mr Justice McMahon said at para. 15 of the judgment :

“Offenders who came to Hong Kong illegally and remain here without authority, contrary to section 38 of the Ordinance are generally, after plea, liable to a sentence of 15 months’ imprisonment.  All persons in most conceivable factual situations who present a forged or false travel document and so gain entry to Hong Kong would be in breach of section 38 of the Ordinance.  Such persons would, if in possession of or having used a forged passport, be liable to a penalty of 15 to18 months’ imprisonment after plea, if prosecuted, pursuant to section 42(2) of the Ordinance.  Why then, given this, should there be a different level of sentencing in respect of persons using forged or false two-way permits to illegally penetrate Hong Kong’s most vulnerable border?”

8.In my view, the present case is indeed more serious than the normal case of another person gaining entry by way of a false two-way permit, because the appellant had upon gaining entry committed a criminal offence in Hong Kong.  It also appears to me that there is no justification for distinguishing between persons gaining entry into Hong Kong by way of a falsified passport and those gaining entry by way of a false two-way permit.  Although having said that I recognise the lack of an international dimension in the latter case.

9.I agree with the learned Magistrate that the appellant’s offence might be regarded as more serious than someone who simply sneaked into Hong Kong and remained here unlawfully, as she had cheated her way into Hong Kong and committed a criminal offence while here.

10.Mr Hung had also submitted that this case ought to be referred to the Court of Appeal under section 118(f) of the Magistrates Ordinance, as he considered that, in view of the different sentences adopted by the court over the years, some of which he had referred to, it is the right time for the Court of Appeal to lay down guidelines for the lower court.

11.I do not agree with him because apart from the fact that the facts of some of this type of offence are more serious than others, there is also the fact that the learned Magistrate in sentencing has to keep an eye on prevalence of offences of this nature.  Thus, circumstances do dictate that some flexibility should be given to a Magistrate when faced with sentencing offenders in this type of offences.  As I have said Mr Justice McMahon gave a reasoned argument as to why for this type of offence an 18 months starting point cannot be viewed as manifestly excessive, and the learned Magistrate was justified in the circumstances of this case to adopt and follow Mr Justice McMahon’s reasoning in the case of Yim Lee Kuen and adopted a starting point of 18  months.

12.In all the circumstances, I do not consider that the sentence is manifestly excessive or wrong in principle and therefore the appeal against sentences is dismissed.

Miss Alice Chan, SGC of the Department of Justice, for the Respondent

Mr Andy Hung, assigned by Legal Aid Department, for the Appellant