Chan Kwong Shun and Another v. The Queen
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CACC001107/1980 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 1107 OF 1980 -----------------
Coram: Silke, J. Date of Judgment: 26th January, 1981. ----------------- JUDGMENT ----------------- 1. The 1st Appellant appealed against concurrent sentence of twelve months each imposed by the trial magistrate at Western Magistracy for the offences of : (i) and (ii) Furnishing false particulars to a Registration Officer contrary to Regulation 19(1)(c) of the Registration of Persons Regulations; (iii) Knowingly making a false statement to on Immigration Officer contrary to Section 42(1)(c) of the Immigration Ordinance. 2. The 2nd Appellant appealed against concurrent sentence of nine months imprisonment imposed in respect of furnishing false particulars to a Registration Officer and of knowingly making a false statement to an Immigration Officer. He was jointly charged in respect of those two offences with the 1st Appellant. 3. They both pleaded guilty. 4. I allowed the appeal giving oral reasons for so doing. I now reduce those reasons to writing. 5. The Appellants are brothers. Chan Kwong Shun, the 1st Appellant arrived in Hong Kong before the 26th October 1980, was given permission to remain and was given an identity card. 6. The 2nd Appellant, Chan Kwong Wai, arrived after that which is known as the "amnesty period" on a date which is not clear but seems to be at the end of October or in early November. 7. On the 24th October 1980 the 1st Appellant went to the Immigration Department brought photograph of himself and applied in the name of the 2nd Appellant for an identity card giving the particulars of the 2nd Appellant. He was processed and finger printed and told to return on the 19th November for an interview. 8. The 2nd Appellant upon his arrival was told of that which had happened and arranged for photographs of himself to be taken giving them to the 1st Appellant to use at the Registration of Persons Office. 9. At the interview on the 21st November 1980 the 1st Appellant submitted photographs of the 2nd Appellant to an Immigration Officer saying they were his own and completed an application form in the 2nd Appellant's name. 10. He was challenged on the differences between the photographs presented on the 24th October and the ones he was presenting at this interview. Fresh fingerprints were taken. They were of course the same. The result was that his application was accepted despite the doubts as to the photographs. 11. Eventaully the 1st Appellant received an Entry Permit in the name of the 2nd Appellant. 12. It would appear that Immigration Officers were investigated as to corrupt practice and the matter came to light. I am not further concerned with that investigation. 13. It has been urged upon me by Miss Tam who appeared for both appellants that this is "familial obligation" type of case and that this concept has been recognised in cases brought under the Immigration Ordinance for offences of aiding and abetting the remaining of illegal immigrants. A 'discount', if one may term is that, on the tariff sentence is allowed in such cases. 14. It is also factors for consideration in such matters that there is no evidence of any payment having been made and no evidence of a deliberate arrangement as to the bringing of the illegal immigrant to Hong Kong. 15. But it must be born in mind here that this matter is not on all fours with such cases. It is quite clear that a deliberate deception was planned. 16. I am in entire agreement with the trial magistrate who said in his reasons for sentence that the appropriate sentence in cases where there is such deliberate deception is one of imprisonment. He thought a sentence of two years imprisonment "would not have been excessive in view of the seriousness of this offence to the community". And he viewed the sentence be imposed as lenient. 17. These are serious offences and they do affect the whole fabric of society in Hong Kong. The courts have made it very clear that offences affecting illegal immigrants - or unauthorised entrants - will not be treated lightly. 18. But I note that the maximum sentence in respect of the furnishing of false particulars to a Registration Officer is a fine of $3,000 and imprisonment for one year. The attention of the trial magistrate does not appear to have been drawn to this. 19. In respect of the Immigration Ordinance offence the penalties, as amended by Section 7 of Ordinance 62 of 1980, are : on conviction in indictment to a fine of $50,000 and to imprisonment for seven years and on summary conviction to a fine of $20,000 and imprisonment for two years. 20. The sentence imposed on the first two offences was therefore the maximum which could be imposed. Neither of the appellants have a record in Hong Kong and, while an offence such as this is most probably a one only offence, in the circumstances I do not think it proper to impose the maximum for a first offence. It may be that the trial magistrate had in mind a global sentence in the light of the maximum penalties which are provided for in respect of the Immigration Ordinance offence but he did not say so. 21. I do accept that there is a "familial obligation" element present here and, while generally speaking the overall sentence might appear lenient, I think some allowance should be made in this instant case for this element. 22. I would therefore in respect of the first appellant allow the appeal in part and substitute for the sentence imposed ones of nine months on each of the charges to run concurrently. 23. As regards the 2nd Appellant : the trial magistrate, in the light of his removal from Hong Kong having served his sentence, made some allowance. I will continue that and allowing the appeal in part substituting a sentence of six months imprisonment on each charge concurrent. 24. I might add before I leave this matter that it seems to me the sentences provided for under the Registration of Persons Regulations and under the Immigration Ordinance to be much too low. This was not the most serious offence of its kind and I can easily envisage matters much more deserving of heavier punishment. Had there been no "familial obligation" factor I would have thought sentences considerably in excess of those imposed to be appropriate.
Representation: Miss M. Tam (Kwan & Kwan) for the Appellants. Miss M. Crabtree for the Attorney General. |