HKSAR v. Francisco, Rosalyn

HCMA284/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.284 OF 2006

(ON APPEAL FROM STCC 2339 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 6 June 2006

Date of Judgment : 6 June 2006

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J U D G M E N T

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1.The appellant pleaded guilty to two counts of using a forged Philippine passport for the purposes of Part II of the Immigration Ordinance, Cap. 115 (Charges 2 and 4) and three counts of making a false representation as to her identity to an immigration assistant (Charges 1, 3 and 5).  On each charge she was sentenced to 9 months’ imprisonment and part of the sentences were ordered to be served partially consecutively, making a total of 21 months’ imprisonment.  She now appeals against the sentences.

2.The appellant had worked as a domestic helper in Hong Kong between 1992 and 1994.  She was arrested for an immigration offence, namely possession of a forged document.  She received a suspended sentence and returned to the Philippines in 1994.

3.Having obtained a false Philippine passport from an agent back in the Philippines (false passport 1), she returned to Hong Kong on 21 January 1998.  She represented herself to the immigration authorities as the genuine holder of that false passport, that is the basis of Charge 1.

4.After that false passport expired, the applicant got a replacement Philippine passport (false passport 2).  She made a false representation again and used that to enter Hong Kong as a domestic helper on 10 September 2004, that is the basis of Charges 2 and 3. 

5.A third replacement passport (false passport 3) was used by her on 6 August 2005 where similar false representations were made, that is Charges 4 and 5.

Grounds of appeal

6.The appellant submits that she got to know prisoners who faced similar charges but who received shorter sentences.  Therefore she thinks that the present sentences are too severe.  She also states that her mother is ill and wants the court have leniency on her.

Respondent’s reply

7.In the written submission by counsel for the respondent the case of R. v. Yu Wing Wut, CACC346/1984 was relied on.  The Court of Appeal said that for offences of using a forged or false travel document, a starting point of 27 months should not be criticized.  Deputy Judge Wright reiterated the same in the case of HKSAR v. Rakesh Kumar Sthapak, HCMA1180/2004.  It is further submitted that similar consideration applies to offences of making false representations to immigration assistance and such offences attracts sentences of similar length.  Thus, the starting point adopted by the magistrate was unduly lenient, and the magistrate has taken into account the totality principle by making some of the sentences in respect of different transactions partially consecutive.  Therefore, it is submitted that the overall sentence of 21 months for offences over some seven years where the appellant assumed different identities could not be described as anything other than lenient.

My judgment

8.I refer myself to the case of HKSAR v. Cortez Emily Bisoy [2002] 2 HKLRD 762.  The facts of the case are as follows :

“The appellant originally came to Hong Kong legally in 1990 and worked as a domestic helper.  A deportation order for life was issued against her in 1997, after she was convicted of offences in respect of her involvement in a false employment contract case and of making a number of false representations to an immigration officer.  She was deported to the Philippines in May 1997 as a result of those offences, but returned to Hong Kong in October 1997 in breach of that deportation order, which forms the basis of the third charged offence in the present case.  On that occasion, she used her cousin’s passport with her own photograph substituted in it, which forms the basis of the first charged offence in the present case.  Upon entering Hong Kong, she also made false representations as to her identity to immigration officer, which forms the basis of the second charged offence.  In order to prolong her stay in Hong Kong, in March 2000, the appellant falsely represented to an immigration officer that she was to become employed as a domestic helper, that forms the basis of the fourth charged offence.” 

9.Facts of that case are quite similar to the present case, albeit that they spread over a period of three years involving two separate occasions.  For offences other than the breach of deportation order, the magistrate adopted 12 months starting point and taking into account the appellant’s plea she was sentenced to eight months sentence concurrently.  For the Breach of Deportation Order offence, which no doubt was the more serious one, she was sentenced to 18 months and all the sentences were ordered to run concurrently.  Deputy Judge McMahon (as he then was) affirmed the sentences.

10.In the more recent case of Rakesh Kumar Sthaoak, Deputy Judge Wright revisited the sentences relating to these immigration offences.  He said :

“It follows, therefore, that the Magistrate would have been fully justified in adopting a starting point of 27 months’ imprisonment and imposing a sentence of 18 months on a plea of guilty.  That sentence would then fall to be reduced if there existed any further mitigation: there was none.  Notwithstanding that, the Magistrate imposed a sentence of 15 months imprisonment.”

11.The offences in the present case spread over a period of seven years.  They were premeditated and repeated offences.  The purpose was to evade immigration control.  The starting point of 13½ months adopted by the learned magistrate was unduly lenient.  Full one-third discount was given to recognize her plea of guilty.  I do not see how the magistrate could be criticized for imposing the sentences as he did.  The fact that other defendants in other cases received shorter sentence is not a ground or basis for disturbing sentence in the present case and my sole concern is whether the sentence in the present case is excessive.  In my view they are not.  The overall sentence of 21 months is not a day too long.  The fact that the appellant’s mother is ill is not a ground for disturbing the sentence.  This appeal is dismissed, and I affirm the sentence by the magistrate.

Ms Mary Sin, SADPP, of Department of Justice, for the Respondent

The Appellant, in person