HKSAR v. Wong Mui also known as Huang Aimei

[English Translation – 英譯本]
HCMA 647/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 647 OF 2013

(ON APPEAL FROM STCC NO. 5704 OF 2012)

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BETWEEN

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JUDGMENT

1.The appellant was convicted after trial by Magistrate Cheang Kei-hong (the magistrate) of the following three charges:

(1)   “Making a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance”, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong;

(2)   “Using a false travel document for the purpose of Part III of the Immigration Ordinance”, contrary to section 42(2)(b) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong;

(3)   “Making a false representation to an Immigration Officer lawfully acting under or in the execution of Part III of the Immigration Ordinance”, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.

2.The magistrate sentenced the appellant to 18 months’ imprisonment on each of the charges, ordering that the sentences for Charges (2) and (3) should run concurrently but 6 months of the sentence for Charge (3) should run consecutively to the 18 months imposed in respect of Charge (1), thus making a total of 24 months’ imprisonment.

3.The appellant appealed against both conviction and sentence.  However, at the commencement of the hearing, she expressed her wish to withdraw the appeal against conviction.  Leave was granted and therefore the court only has to consider the appeal against sentence.

Brief facts of the case

4.The false representations and the false travel document involved in the present case relate to the appellant’s date of birth.

5.The appellant is a mainlander whose daughter was born in Hong Kong in 2001.  On 30 October 2004, she entered Hong Kong on the strength of a People’s Republic of China Permit for Travelling to and from Hong Kong and Macau (Hong Kong – Macau Permit) with her date of birth shown to be 26 July 1963.  She was permitted to stay as a labourer until 30 October 2005.  The appellant left the territory before the expiry date.

6.On 20 August 2012, the appellant came to Hong Kong again on a Hong Kong – Macau Permit with her date of birth shown to be 26 July 1963.  She was permitted to stay as a visitor for 43 days.  The name of the appellant shown on the permit was “Wong Mui”.

7.On 28 September 2012, the appellant went to the Immigration Department to apply for an extension of stay in Hong Kong.  In support of her application, she brought along the Hong Kong – Macau Permit which she used to enter Hong Kong and the Hong Kong Birth Certificate of her daughter.  However, it was discovered by the staff of the Immigration Department that the name of the mother as shown on the Birth Certificate was “Huang Aimei”, which was different from that shown on the Hong Kong – Macau Permit.  Upon enquiry by the Immigration Department, the appellant produced two People’s Republic of China resident identity cards to prove her identity.  One was in the name of Wong Mui with her date of birth being 26 July 1965 whereas the other was in the name of “Huang Aimei” with her date of birth being 26 July 1963.

8.Under caution, the appellant admitted that her date of birth was 26 July 1965 and Huang Aimei was her pet name.  During her second cautioned interview, the appellant further admitted that she had entrusted a friend to assist her in applying for the identity document required for coming to work in Hong Kong.  However, her friend told her that her application was not likely to succeed if it was made with her true identity.  As a result, the application was made in the name of Huang Aimei with her year of birth stated to be 1963. 

9.The Immigration Department instituted prosecution against the appellant on the basis that she made a false representation to the Immigration Department as to her date of birth when she applied to come to Hong Kong in 2004, and that she produced to an immigration officer a Hong Kong – Macau Permit bearing a false date of birth and falsely represented to the immigration officer as to her date of birth when she applied for an extension of stay in 2012. 

The magistrate’s reasons for sentence

10.The magistrate referred to some relevant authorities and considered an appropriate starting point for each of these charges would be 18 months’ imprisonment.

“16. In HKSAR v Yim Lee Kuen HCMA 1187/2022 (sic), Deputy High Court Judge McMahon (as he then was) considered a starting point of 18 months’ imprisonment justified for the offence of making a false representation to an immigration officer, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.

17. In HKSAR v Mohamed Naseer Ahamed Fazloon HCMA 827/2010, the late Mr. Justice Mackintosh said:

“11.  Sentencing practice for the offence of making false representations to an immigration officer whether by name or date of birth or production of false or forged document is now well established.  As McMahon J said in a case called HKSAR v Pahila, [2007] 1 HKLRD 410, these are to be regarded as serious offences for which term of imprisonment starting at 18 months is appropriate.  Given the plea of guilty which justifies a reduction of one-third of the sentence, that term would have been reduced to 12 months’ imprisonment in this case.” 

18. In HKSAR v Lin Peiluan HCMA 373/2003, Deputy High Court Judge M Poon (as she then was) considered that a starting point of 18 months’ imprisonment for offences of using false travel documents and making false representations to Immigration officers was “by no means manifestly excessive nor wrong in principle”. ”

Discussion

11.At the appeal hearing, I pointed out that the facts of the present case might be different from those of the other cases considered by the magistrate.  The factor which I take into account is that in the present case, there appears to be no evidence to show that the appellant made a false representation of her date of birth for the purpose of changing her identity or misleading the immigration officer.  There is nothing in this case which shows that her date of birth was an important consideration in granting her approval to enter Hong Kong.

12.In my view, similar offences should be considered individually depending on the circumstances of each case.  If the travel document or identity document which a defendant produced to the Immigration Department bore false information, but the false information was not intended for the purpose of misleading the immigration officer, a more lenient sentence may be considered.

13.Ms. Fung, Senior Public Prosecutor for the Respondent, points out in reply that the appellant had two previous convictions for breach of condition of stay by overstaying, one in 1997 and the other in 2002.  On both occasions, she was given a suspended sentence.  Ms. Fung submits that the appellant’s application for the false Hong Kong – Macau Permit was probably related to these criminal convictions. 

14.While considering the judgment, I received a letter from the appellant telling me that she had successfully gained entry to Hong Kong in 2003 on a Hong Kong – Macau Permit stating 1965 as her year of birth.  Hence, it was unnecessary for her to forge any identification documents in order to facilitate her entry into Hong Kong.

15.Nevertheless, I read through the cautioned statements of the appellant and found that during her second cautioned interview, the appellant admitted that in 2004, she had entrusted a friend to assist her in applying for the document required for coming to work in Hong Kong.  However, her friend told her that her application was not likely to succeed if it was made with her true identity.  As a result, the application was made in the name of Huang Aimei with her year of birth stated to be 1963.   

16.In my view, the appellant used a false document for the purpose of misleading the immigration officer.  Hence, the starting point adopted by the magistrate was absolutely correct.

17.The appellant urges this court to take into consideration her daughter, who is of tender years and in desperate need of her care.  However, as the magistrate had pointed out, family circumstances do not constitute valid reasons for reduction of sentence:

“20. I have full sympathy for the defendant’s daughter, but the defendant committed the present three offences after the birth of her daughter. In this connection, I quote the following passage from ‘Sentencing in Hong Kong’[1]:

“Family circumstances are often prayed in aid in mitigation by convicted persons.  However, ‘family hardship which is usually attendant upon the conviction is to be viewed as part of the price the accused must pay for his crime’: HKSAR v LI Kwok-ching [2005] HKCU 1702 (HCMA 1132/2005, 30 November 2005, unreported).  Those who commit offences should keep in mind ‘the principle that the adverse effect of imprisonment upon an offender’s family is not normally a factor to be taken into account’: HKSAR v Chan Kin-chung [2002] 4 HKC 314, 321.  Family circumstances, in any event, ‘are matters which a wise man would take into consideration before he commits an offence and not after’: HKSAR v To Yiu-cho [2009] 5 HKLRD 309, 311.”

I do not consider the situation of the defendant’s daughter a valid mitigating factor in the present case.

21.   There being no other valid mitigating factors to justify any reduction in sentence, I imposed a sentence of 18 months’ imprisonment on the defendant for each of the charges.”

18.The magistrate ordered the sentences for Charges (2) and (3) to run concurrently, but 6 months of the sentence for Charge (3) was to run consecutively with the 18 months imposed in respect of Charge (1), thus making a total of 24 months’ imprisonment.  In my view, since Charges (2) and (3) arose out of the same application while Charge (1) took place in 2004, the approach adopted by the magistrate in determining whether the sentences were to run consecutively was not wrong in principle.

19.Notwithstanding that, as I have mentioned in paragraph 15, the false representation which the appellant made in 2004 related to her application to come as an imported worker.  There was an intention to mislead the Immigration Department.  But in 2013, the appellant committed the offence in her application for an extension of stay in order to take care of her daughter.  The situation was different. The appellant did in 2003, after her contravention of the condition of stay in 2002, gain entry to the territory successfully with her true identity.  Hence, in this application made in 2013, had she not entered Hong Kong on the false Hong Kong – Macau Permit previously, she could have used her true identity to apply for the extension of stay.  In such circumstances, I am of the view that Charge (1) is related to the other two charges. 

20.In my view,having regard to the circumstances of this case, the overall sentence of 24 months’ imprisonment is manifestly excessive.  I consider the appropriate overall sentence should be 18 months’ imprisonment.  In other words, the terms of the 3 charges shall run concurrently.

21.For the above reasons, I allow the appeal.  The original sentence is set aside and in its place, I order the sentence of 18 months’ imprisonment on each charge to run concurrently.

The Appellant, acting in person, present.

Mickey Fung, Senior Public Prosecutor of the Department of Justice, for the HKSAR.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.