HKSAR v. Fan Aisan

HCMA911/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.911 OF 2006

(ON APPEAL FROM STCC 7863 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 20 October 2006

Date of Judgment : 20 October 2006

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J U D G M E N T

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1.The appellant pleaded guilty to two charges of using a false travel document for the purposes of Part II of the Immigration Ordinance, Cap.115 (Charges 1 and 3) and two related charges of making a false representation to an immigration assistant (Charges 2 and 4).  She acquired a false Chinese permit from an agent in October 2005 and used the same to enter Hong Kong on 26 December 2005 and 18 May 2006 thereby committing those charges.

2.After her arrest in respect of the second set of offences, she was found to be using another name.  Her true identity at the time of arrest was unknown to the authorities.  She was then prosecuted for an offence of soliciting for an immoral purpose and one charge of breach of condition of stay, for which she received a total of 6 months’ imprisonment.

3.The magistrate, in sentencing the appellant in the present case, took that into account and came rightly to the view that had the authorities known the appellant’s true identity, she should not have been charged separately.  To reflect that special circumstances and totality, it was ordered that the 12 month sentences on Charges 1 to 4 should run concurrently with each other and that only 9 months of those terms should run consecutively to the 6-month prison term that she was then serving, resulting in an overall sentence of 15 months.

4.The appellant now appeals against her sentence.

Grounds of appeal

5.The appellant said that the sentences are too severe.  She alleges that after she came to Hong Kong there was natural calamities including floods and typhoon as a result of which her house was ruined.  She asks to be able to go back home to take care of her elderly mother and her child.  She said that her mother after learning about her imprisonment this time suffered a stroke.  She guaranteed that she would not re-offend again.

Respondent’s reply

6.Respondent’s counsel submitted that the magistrate had correctly adopted 18 months as starting point for each offence, in line with the existing authorities such as HKSAR v. Yim Lee Kuen, HCMA1187/2002 and HKSAR v. Xie Yazhong, HCMA975/2005.  In the latter case, the appeal court said that the appellant there repeatedly used forged documents to undermine the integrity of Hong Kong’s borders, a higher starting point could indeed to be adopted.

7.It was also submitted that sudden and unfortunate events which happened after her arrival in Hong Kong did not constitute humanitarian grounds.

My judgment

8.The learned magistrate relied on the case of Yim Lee Kuen, where Deputy Judge McMahon (as he then was) concluded that a starting point of 18 months’ imprisonment for offences involving production of a false two-way permit to gain entry into Hong Kong was appropriate.

9.The appellant had one previous similar in 2004, where she was sentenced to 4 months’ imprisonment in respect of one charge of making false representation to an immigration officer.

10.The magistrate, by adopting starting points of 18 months’ imprisonment for all four charges was taking a rather generous approach.  He further gave her the full one-third discount and recognizing the special circumstances in respect of the sentence she was then serving, ordered 9 months of the present sentences to run consecutively to that 6 months.

11.According to the case of Attorney General v. Liu Chi Ping, CAAR1 & 2/1990, the Court of Appeal whilst accepting that the appellant’s father being dangerously ill, held that as he came to Hong Kong with knowledge of that illness, that was no strong humanitarian consideration. 

12.In HKSAR v. Guo Jingxing, HCMA15/2006, the appellant relied on the ill health of her mother as a factor for discount of sentence.  Deputy Judge Longley disagreed and said this :

“… the applicant was aware that his mother had already suffered one stroke before he entered Hong Kong on this occasion, with a view yet again to breach the laws of Hong Kong.  He chose to take the risk that her health might decline.”

13.This appellant came to Hong Kong with full knowledge of the consequence that should she be arrested, she needed to serve imprisonment and would not be able to take care of her family.  She had assumed that risk and indeed turned a blind eye to such.  It is wrong for her to rely on such now to ask for court’s mercy on humanitarian grounds. 

14.The sentences of 15 months’ imprisonment overall could not be said to be manifestly excessive or wrong in principle.  The appeal is dismissed and I affirm the sentence.

Ms Lily Wong, SGC of Department of Justice, for HKSAR

The Appellant, in person