HKSAR v. TARAFDER MD ABDUL JALIL

HCMA1001/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1001 OF 2001

(ON APPEAL FROM KTCC 5461 OF 2001)

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J U D G M E N T

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1. The appellant was convicted on his own plea at Kwun Tong Magistracy of an offence of using a forged travel document, a passport, for the purpose of Part II of the Immigration Ordinance, contrary to section 42(2)(b) of that Ordinance, and of an offence of making a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of that Ordinance, contrary to section 42(1)(a) of the Ordinance. He was sentenced to six months' imprisonment in respect of the first offence and to four months' imprisonment in respect of the second offence, both sentences to be served concurrently. Accordingly, he received a total sentence of six months' imprisonment.

2. The appellant does not complain about the totality of that sentence. He simply wishes to put forward humanitarian reasons why he should be released before the completion of the service of that sentence.

3. Those reasons he advances are primarily that his father has suffered a heart attack since learning of the appellant's imprisonment here in Hong Kong for these offences and that he, himself, suffers a mental illness, which is better treated in his own country of Bangladesh than here in Hong Kong. He further relies upon the fact that his mother had passed away before he came to Hong Kong as exacerbating the effect, as I understand it, of these two primary humanitarian grounds of his appeal.

4. It should be pointed out that these matters were all themselves matters or events which pre-dated his sentencing by the learned magistrate, other than the occurrence of the father's heart attack. The learned magistrate was informed, or at least could have been informed, substantially of all of the balance of those matters.

5. Today's appeal is effectively based on the simple fact that some documentation supporting these humanitarian grounds for the appeal which was not available at the time of sentence is now more fully available and produced before me.

6. As a starting point, it is urged upon me that the learned magistrate did not take into account these matters as mitigation. I accept that she did not. She said in her Reasons for Sentence :

"11. In sentencing the Appellant, I gave him full credit for his pleas of guilty and his previous clear record, which was the only mitigation of weight before me. ..."

7. In my view, the learned magistrate was entitled not to place any weight on the humanitarian matters as they were raised before her.

8. Each of the matters was pre-existing at the time the offences occurred with the possible exception as I say, of the worsening of the father's cardiac condition. But that itself was apparently brought about by these offences and the imprisonment of the appellant. And in my judgment, the illness of the appellant's father, the degree of which is somewhat unclear on the material before me, cannot be said to be in the category of an unexpected disaster warranting a significant humanitarian reduction in sentence.

9. As Leonard J said in R. v. Lam Sai Ying, MA811 of 1991, there are a very large number of occasions when a person serving a sentence in Hong Kong has a seriously ill close relative in his homeland. That, by itself, is not normally regarded as a sufficient humanitarian basis for the reduction of sentence. And I may add, in this case, the degree of the father's illness brought about by what is said to be his heart attack remains cryptically unclear on the medical report which has been provided to me. His condition is simply said in that report to be "serious". The precise nature of the condition is not stated. I have considerable reservations about relying upon a medical report cast in such vague terms.

10. Further, in my view, sentences of six months' imprisonment after plea for persons considered to be "in transit", whatever that may mean, in respect of these sorts of offences seems wholly disproportionate to the sentences of 18 months' imprisonment after plea for persons who commit the same offences but are not "in transit "in Hong Kong.

11. This sentencing practice apparently stems from suggested categorizations of sentences in case law dating back to the mid-1980s.

12. In a more recent case, HKSAR v. Ng Lai Kin, HCMA1002/1998, Stock J (as he then was) said this :

" The courts have some time past put forward as a guideline a sentence on plea of 18 months' imprisonment for the use of a forged passport. .... This is not a strait-jacket and each case must be viewed on its own facts. It would appear that this is the guideline which was used by the magistrate in this particular case.

My attention has, for the purposes of this appeal, been drawn to a whole series of individual cases in which lesser sentences have been given for somebody in transit and it seems generally accepted now, both at this level and also by magistrates, that that is to be viewed as a factor which should warrant a departure from the guideline of 18 months.

...... I accept, that ... the range is normally six to nine months' imprisonment.

I have to say that I have some difficulty with the rationale for such a wide difference between the two, in other words between the sentences imposed for transit cases and non-transit cases. I say that because the major element in sentencing for all cases of this kind to which the courts should have regard is the element of comity, and the need to co-operate for our own benefit and for the benefit of others to prevent or deter travel on false passports."

With that expressed view of Stock J (as he then was), I respectfully agree.

13. In my judgment, the present level of sentence for this sort of offence may well be considered as requiring an increase. Since the mid-1980s, the use of false passports has increased significantly. It seems to me, accordingly, that higher sentences are justified certainly so far as the category of transit offenders are concerned. That is particularly so, in my view, when it has become increasingly apparent in recent years, that part of the many schemes used for transporting people illegally into other countries using forged passports often involves the distribution of those passports in transit areas of airports.

14. I am not suggesting that happened here, indeed on the facts the present appellant attempted to go through the immigration control point at Hong Kong International Airport using the passport and certainly was not found inside the transit area. So far as his facts are concerned, it seems to me that only in the broadest possible sense could he be considered a transit offender.

15. In short he has, in my view, already been leniently treated so far as sentence is concerned.

16. There is no merit in the humanitarian matters advanced before me and accordingly the appeal is dismissed.