HKSAR v. Kamissoko Mahamadou

HCMA 714/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 714 OF 2008

(ON APPEAL FROM STCC 4992/2008)

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BETWEEN

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Before:  Hon Beeson J in Court

Date of Hearing:  12 September 2008

Date of Judgment:  12 September 2008

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J U D G M E N T

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1.This Appellant pleaded guilty in the Magistracy to one charge of using a false travel document for the purposes of Part II of the Immigration Ordinance, contrary to section 42(2)(b) of the Immigration Ordinance, Cap. 115 and a second charge of making a false representation to an Immigration officer, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115.  He was sentenced to eight months’ imprisonment on each charge and the Magistrate ordered the sentences to be concurrent.  The Appellant appealed against those sentences.

2.The Appellant admitted a Summary of Facts before the Magistrate.  They showed that he presented his Malian passport, together with an expired Malian passport, each of which bore the same false date of birth (10 May 1974), to the Immigration authorities at the China Ferry Terminal on the Appellant’s arrival in Hong Kong, from Macau.

3.The Appellant, a Malian citizen, was granted permission to land as a visitor.  When he went through Customs, another Malian passport bearing his correct date of birth was found in his possession.  The Appellant was referred to Immigration for enquiries.  Because his identity was in doubt, he was arrested.

4.Under caution, the Appellant admitted that he had been born on 10 May 1972 and he had applied for a Malian passport from the Malian authorities, but had not submitted his family register.  When he received the travel document he knew that the date of birth was wrong, but still used the passport for arrival clearance, thus falsely representing his date of birth.

5.Travel records showed that the Appellant used a passport with the false birth date to travel to Hong Kong between June 2003 and August 2005, when that travel document expired.  Thereafter from October 2005 to the time of his arrest, the Appellant used the current false passport.  He had entered Hong Kong more than 20 times since 2003.

6.The sole ground of appeal was that the sentences were too severe.  No formal grounds of appeal were filed.  On appeal, the Appellant said that he was in charge of a large number of people in Mali.  He was responsible for a number of children going to school and had been paying their fees.  He told the court he travelled to Hong Kong on his business as a merchant, that he had two wives and five children, and that his total family numbered 25.  He claimed that his family and other people for whom he was responsible, would have difficulties in surviving without his financial assistance.  He had had surgery thrice in Kinshasa.  Although he had seen doctors in prison, he said he was not satisfied that the medication prescribed for him was working.  He pointed out that he was only a businessman and had done nothing wrong. 

7.When sentencing, the Magistrate noted that the Appellant was a businessman.  He recognised also that the Appellant had a clear record in Hong Kong and that there was no indication that the false passports had been used for any illegal activities.

8.The Magistrate referred to The Queen v. Wang Ju-wen (1989) 2 HKLR 26 which indicated a sentence of 18 months’ imprisonment on a plea of guilty was appropriate for possession and use of a false passport.  That case involved a businessman using 2 false passports on 16 occasions to facilitate his business travel.

9.In his Statement of Findings at paragraph 7, the Magistrate noted that the Appellant spoke his native language, Soninke and also spoke French, in which language the court proceedings in the Magistracy and on this appeal took place.  When sentencing, the Magistrate took into account his belief that a person of the Appellant’s linguistic background would need a little time to adapt when imprisoned in Hong Kong.  The Magistrate commented that a person who did not speak English or Chinese would have some adjustment difficulty.  However, he noted that the Appellant had been to Hong Kong more than 20 times since 2003, so was not entirely unfamiliar with Hong Kong life.  With these factors in mind, the Magistrate took a starting point on each charge of 12 months’ imprisonment.  This appeared to be a lower starting point than usual for this type of offence.  The Magistrate gave the Appellant full credit for his guilty plea and sentenced him to eight months on each charge, the terms to run concurrently.

10.There were no mitigating features in this case other than the Appellant’s plea of guilty.  The Magistrate imposed a sentence that can be regarded as lenient for this type of offence.

11.Accordingly, I dismissed the appeal against sentence.

Mr Stewart Hau, Senior Public Prosecutor of the Department of Justice, for the Respondent

The Appellant, acting in person