HKSAR v. Tjia, Chiu Lie

HCMA690/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 690 OF 2010

(ON APPEAL FROM STCC 3907 OF 2010)

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Before : Hon McMahon J in Court

Dates of Hearing : 21 October 2010

Date of Judgment : 21 October 2010

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J U D G M E N T

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1.The appellant in this case was charged with four charges of using a false travel document, contrary to section 42(2)(b) of the Immigration Ordinance, Cap. 115 and with four charges of making a false representation to an Immigration Assistant, contrary to section 42(1)(a) of the same Ordinance.

2.She pleaded guilty to those offences and was convicted in Shatin Magistrates’ Court and sentenced to a total imprisonment of 12 months.  Her grounds of appeal relate to her sentence only and are the formal grounds set out in Form 102 of the Magistrates Ordinance.  She simply complains that the sentence imposed upon her was too severe. 

3.The facts of the case are that the appellant, who was born in Indonesia in 1970, first came to Hong Kong in 1992 using a forged Indonesian passport.  The passport, according to the appellant, was provided by her godmother in Indonesia.  It was apparently a passport containing the real details of a Hong Kong resident Lie Khin Fa (“Lie”) but with the appellant’s photograph substituted for that of Lie. 

4.Between 1992 and August 2000, the appellant used the passport on four separate occasions, to either arrive in Hong Kong or to make applications for extensions of her stay in Hong Kong.  In conjunction with the use of the passport, the appellant made various representations to immigration officers, by which she represented herself to be the person Lie.  

5.In respect of each of the offences the magistrate adopted a starting point of 18 months’ imprisonment and reduced it to 12 months for the appellant’s plea of guilty. 

6.The appellant urges upon me today that the sentence was too severe because she is worried about her children and her husband, who all live in Hong Kong.  She married her husband whilst she was staying in Hong Kong nearly 20 years ago.  She has two children, a 17-year-old girl and an 8-year-old boy.  She is concerned about, as I say, their well being and also her husband’s well being because he suffers from neurosis.

7.The sentence imposed upon the appellant is already very lenient.  The magistrate was particularly generous in ordering all the sentences to run concurrently and there is absolutely no basis for the appellant to be able to assert that the sentence is too severe.

8.I can understand why the magistrate was so lenient.  The appellant now aged 40 has lived a blameless life whilst she has been in Hong Kong and was in fact detected in respect of these offences only because she had used her false passport for an application for a permanent Hong Kong identity card.  It was in the course of processing that application that the Immigration Department realised that the appellant’s passport provided the name and details of another Hong Kong resident.  No doubt the magistrate in arriving at the sentence also averted to the fact that the appellant’s two children seemed to be perfectly normal and quite commendable in their schooling and in their aspirations which have been set out in a letter by each of them sent to me.

9.I am satisfied though that the appellant’s concerns about her family do not warrant, as I say, any reduction in sentence and that the children are not in any danger of neglect.  In any event the International Social Service in Shamshuipo is aware of the situation of the appellant’s family.  I note also the appellant’s husband is receiving regular medical treatment for his neurosis.  In short there is no exceptional humanitarian reason to reduce this already lenient sentence. 

10.The application is therefore dismissed.

Ms Noelle Chit, PP of the Department of Justice, for the Respondent

The Appellant, in person