HKSAR v. Sanogo, Mamoudou

HCMA102/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 102 OF 2011

(ON APPEAL FROM STCC 28 OF 2011)

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Before : Hon Lunn J in Court

Date of Hearing : 31 March 2011

Date of Judgment : 31 March 2011

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J U D G M E N T

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1.The appellant, who appears in person, appeals against a sentence of eight months imprisonment imposed on him on 3 January 2011 by Mr Andrew Ma in the Shatin Magistracy following his plea of guilty to a single charge of making a false representation to an Immigration Assistant, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115. The appellant was represented by Mr Bruce Tse, instructed by the Duty Lawyer Service, at the plea and sentence. On 13 January 2011, the magistrate refused an application by the appellant, who appeared in person, to review the sentence.

The charge

2.The charge alleged that on 30 December 2010 in Hong Kong the appellant had represented to an Immigration Assistant, lawfully acting under or in the execution of his duty, that he was Sanogo Moussa who had been born on 1 January 1977.

The facts

3.The appellant accepted that he had represented himself to the immigration authorities at Lok Ma Chau to be Sanogo Moussa, presenting a Mali passport in that name, which passport he presented as he departed Hong Kong as he travelled to the Mainland.  That person was his brother, whose passport he had taken without his permission and presented to the immigration authorities.  The appellant had arrived in Hong Kong earlier that day travelling on a passport in his own name Sanogo Mamoudou. However, his own passport did not have a visa valid for re-entry into the Mainland whereas his brother’s passport did have such a visa.  The offence was committed in circumstances where the appellant needed to return to Guangzhou for business that day.

Reasons for sentence

4.In his reasons for sentence the magistrate stated that he accepted the mitigation advanced on behalf of the appellant, namely that he was a person of good character and that he had pleaded guilty to the offence.

5.The magistrate noted that those who deceive Immigration authorities by the use of false travel documents or false information and thereby commit this offence could expect the courts to take a starting point for sentence of 18 months’ imprisonment (see HKSAR v Pahila [ 2007] 1 HKLRD 410; HKSAR v Mohamed Naseer Ahamen Fazloon,unreported, 8 December 2010, HCMA827/2010 and HKSAR v Tjia Chiu Lie, unreported, 21 October 2010, HCMA690/2010).

6.Notwithstanding the fact that he had identified a starting point of 18 months’ imprisonment as appropriate in general terms for the commission of this offence the magistrate stipulated that he adopted a starting point of 12 months’ imprisonment, describing that as “lenient”.  Having applied a discount of 1/3 to that starting point, to reflect the mitigating factors, the magistrate sentenced the appellant to eight months’ imprisonment.

Grounds of appeal against sentence

7.The appellant advances the general ground of appeal against sentence set out in Form 102, namely that the sentence imposed was “too severe”.  In his hand written submissions he invites the court to note that, although he had been coming to Hong Kong for many years, this was the first offence that he had committed.  Finally, he sought leniency on the basis that he was to be married and that he had a business to run.

8.In his oral submissions today he asked for forgiveness, pointing out again that this was his first offence, he had lost his honour and perhaps the trust of his business partners. 

A consideration of the submissions

9.The magistrate was correct to describe the starting point that he took for the commission of this offence of 12 months to the “lenient”.  As he noted, the dilemma that the appellant faced of having to return to the Mainland urgently was no justification whatsoever for his conduct.  At some earlier time, he had lost his own Mali passport which contained a Mainland visa.  The replacement passport that he obtained did not contain such a visa.  The appellant’s personal circumstances, his prospective marriage and his business, were irrelevant to the determination of the appropriate sentence to be imposed upon him.  The discount of 1/3 adopted by the magistrate incorporates an acknowledgement of his character and his plea of guilty.  It includes the remorse that he expressed for having committed the offence.  In the result, the sentence of eight months’ imprisonment imposed on the appellant was low in all the circumstances. 

Conclusion

10.Accordingly, the appellant’s appeal against sentence is dismissed.

Mr Martin Hui, SADPP (Ag) of Department of Justice, for HKSAR

The Appellant in person, present