HKSAR v. Pahila, Jerome Madelo

HCMA1126/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1126 OF 2006

(ON APPEAL FROM STCC 11325 OF 2006)

---------------------

BETWEEN

---------------------

Before : Hon McMahon J in Court

Date of Hearing : 23 January 2007

Date of Judgment : 23 January 2007

-------------------------

J U D G M E N T

-------------------------

1.The unrepresented 30 year-old appellant was convicted on his own plea of two offences of making a false representation to an immigration officer contrary to s. 42(1)(a) of the Immigration Ordinance Cap. 115.  He was sentenced to 8 months’ imprisonment on each offence, 4 months of the terms to be served consecutively, resulting in a total sentence of 12 months’ imprisonment.  

2.He appeals that sentence as being too severe. 

3.The facts of the case were that the appellant came to Hong Kong illegally using a false passport on two separate occasions in 2005.  When he tried to enter Hong Kong using his own passport in 2006 immigration officers using various checks, including a fingerprint check, were able to determine he had twice previously entered Hong Kong using a different passport.  The appellant admitted the offences when questioned about them. 

4.An offence of making a false representation to an immigration officer by the use of a false passport is a serious matter.  For each offence the magistrate took a starting point of 12 months’ imprisonment.  In that regard he said :

“The offences of making false representation to immigration officers are very serious offences, and the authorities envisage a starting point ranging from 12 months to 18 months (e.g. HKSAR v. Yim Lee Kuen, HCMA1187/2002; HKSAR v. Lin Pei Luan, HCMA373/2003; and HKSAR v. Li Xiao Feng, HCMA286/2003).  The offences of using travel document are considered even more serious, and the authorities envisage a starting point ranging from 18 months to 27 months (e.g. R. v. Chan Shing Leong, HCMA1149/1996 and HKSAR v. Pak Wan Lung, CACC573/1998).”

5.In my view the magistrate’s approached to the starting point of sentence for each of the present offences was lenient. 

6.In HKSAR v. Yim Lee Yuen, HCMA1187/2002 a previous judgment of my own, it was pointed out that there was little logic in distinguishing levels of sentence for offences of using a false passport to enter Hong Kong contrary to s. 42(2) of the Ordinance and of making a false statement to an immigration officer by way of producing a false passport contrary to s. 42(1) of the Ordinance, as was the case with the present appellant.  In my judgment, sentences after plea of up to 18 months’ imprisonment are justified in respect of both sorts of offences.  By taking a starting point of sentence of 12 months’ imprisonment the magistrate was overly lenient with the appellant.  He then gave an appropriate level of discount of a further one-third to reflect the appellant’s plea of guilty. 

7.The two offences were plainly separate offences separated by several weeks.  In principle they properly were subject to consecutive sentences subject to considerations of totality.  That is in fact the procedure the magistrate adopted.  Given the unrepresented status of the appellant I do not intend to increase his sentence in any way, but it goes without saying that the totality of 12 months’ imprisonment imposed by the magistrate cannot in anyway said to be excessive and this appeal is dismissed.

Mr Robert K.Y. Lee, SGC of the Department of Justice, for HKSAR

Appellant in person