HKSAR v. Cao Yixian
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HCMA1094/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 1094 OF 2008 (ON APPEAL FROM STCC 8153 OF 2008) -------------------------- BETWEEN
-------------------------- Before : Deputy High Court Judge Longley in Court Date of Hearing : 19 February 2009 Date of Judgment : 19 February 2009 ----------------------- J U D G M E N T ----------------------- 1.This is an appeal by the appellant against sentences totalling 15 months’ imprisonment imposed upon her by Mr Jenkins at Shatin Magistrates’ Court following her pleas of guilty to four charges of making a false representation to an Immigration Assistant contrary to section 42(1)(a) of the Immigration Ordinance. 2.The offences were committed on separate occasions, 4 October 2002, 25 April 2003, 8 November 2003 and 15 November 2007 respectively. 3.On the first two occasions she had entered Hong Kong using a two-way Chinese permit under the name Tao Xian. Following the second of those two occasions she had been convicted of dealing with goods to which the Dutiable Commodities Ordinance applies and breach of her conditions of stay. She was sentenced to imprisonment and repatriated to the Mainland. On the third occasion she entered with a two-way China permit in her own name but with a false date of birth. On the fourth occasion she entered Hong Kong on another two-way China permit again bearing the same false date of birth. 4.The magistrate said that where a defendant was alleged to have used a travel document where one of the particulars was incorrect such as date of birth or true name, as opposed to the whole document being false, he as a rule of thumb would sentence the defendant to half of the sentence he would have imposed where only the photograph related to the defendant. 5.In so far as the sentences on the first two charges are concerned, the magistrate said he took into account that they had been committed prior to 20 February 2003, the date of the judgment of McMahon J in Yim Lee Kuen, HCMA1187/2002. He adopted starting points of 4½ months (i.e. half of 9 months) which he reduced to 3 months to take into account the appellant’s pleas of guilty. He ordered both sentences to run consecutively. Although the magistrate was mistaken in believing that the offence which gave rise to the 2nd charge was committed before the decision in Yim Lee Kuen this error was to the benefit of the appellant. 6.The magistrate said that since Charges 3 and 4 were committed after the decision in Yim Lee Kuen he adopted starting points of 9 months (i.e. half of 18 months) and reduced the terms to 6 months to reflect the defendant’s pleas. 7.He took the view that the 6-month sentence on Charge 3 should run wholly consecutively to the sentences on Charges 1 and 2 whereas only 3 months of the sentence on Charge 4 should run consecutively to the sentences on Charges 1 to 3, making a total of 15 months’ imprisonment. 8.At the hearing before me the appellant stated that it was a mistake on the part of the Mainland government that her name on her permit on the first two occasions was false. She stated that false date of birth on the latter two occasions was also a mistake on the part of the Mainland authorities. 9.The magistrate expressly considered the suggestion made in the mitigation that the false name on the first two occasions was a mistake on the part of the Mainland authorities. He doubted that the wrong name was a mistake. He pointed out that the Chinese characters were different. I had the benefit, which the magistrate did not, of seeing a photocopy of the permit used by the appellant on the first two occasions. Both the character “Tao” and the character “Xian” were different from those of her real name which in any case has three characters not two. The magistrate remarked in any event that it was clear from the admitted facts that she was aware that her name was wrongly stated. The charges themselves allege that she represented that she was Tao Xian “knowing the representation to be false or not believing the same to be true”. 10.In so far as Charges 3 and 4 are concerned he found that the false date of birth were not “mistakes” by the mainland authorities but were an attempt to conceal her criminal record from the Hong Kong authorities. 11.I consider the learned magistrate was justified in reaching the conclusions he did. It is apparent from the documents that the appellant had submitted to me that this false date of birth appears on a number of different documents issued to her on different occasions by the authorities since her return from Hong Kong after the visit that is the subject to the 2nd charge during which she had served the term of imprisonment. 12.I do not believe that these were all “mistakes” by the authorities. Indeed it is apparent from her household register card for which she registered on 22 September 2003 shortly after her return from Hong Kong and shortly before her third visit on 8 November 2003 that she was seeking to record her name as Cao Yi Xian in place of the name Tao Xian. Bearing in mind the so-called error with her name that the authorities had made on the previous occasions she would have been concerned to ensure that her particulars on this occasion were recorded correctly. Instead an incorrect date of birth appears. 13.This household register was the very document that the appellant informed the court would be the basis on which the Mainland authorities would issue a travel permit. It follows that by registering herself in her true name Cao Yixian with a different date of birth, any travel permit issued to her subsequently would bear no relationship to the particulars on the permit she had previously used to travel to Hong Kong. 14.I find nothing to justify any reduction in sentence. The appeal against sentence is dismissed.
Miss Margaret Lau, PP of the Department of Justice, for the Respondent Appellant in person, present |