HKSAR v. LI CHOI CHING

HCMA979/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 979 OF 1998

(On appeal from SPC 6115 of 1998)

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J U D G M E N T

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1. The appellant, LI Choi-ching, a woman aged 20, appeals against her sentence of 15 months' imprisonment for an offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully here, contrary to Section 38(1)(b) of the Immigration Ordinance, and against her sentence of 6 months' imprisonment for an offence of possession of an unlawfully obtained travel document contrary to Section 42(2)(c)(1)(i) of the Immigration Ordinance, of that sentence of 6 months, 3 months are to be served concurrently with the sentence for the unlawful remaining offence.

2. Those sentences were passed on 21 September 1998, by Mr Henry Mierczak, Permanent Magistrate sitting at San Po Kong Magistracy. The appellant pleaded guilty to the offences at trial. At trial the appellant was represented by a duty lawyer.

3. Briefly, the facts of the case are that the appellant was intercepted by the police as the authenticity of the Chinese permit for travelling to and from Hong Kong and Macau which she produced to them was questioned. The defendant was detained, and the matter referred to the Immigration Department for further investigation. That investigation showed that the defendant was travelling on a permit issued to another woman, on to which her own photograph had been unlawfully substituted. She also admitted to the police that she had sneaked into Hong Kong, after having paid a snakehead in the mainland RMB800. She arrived here on 14 September 1998, it was on 17 September 1998 that she was intercepted by the police.

4. In her appeal, the appellant relies on the general grounds of appeal set out in her Notice of Appeal, Form 102 of the Magistrates' Forms Rules, namely that the sentences are too severe.

5. In her submissions before me this morning, she says that she was cheated by the snakehead in the mainland. She was told that lawful documentation could be arranged in Hong Kong. She also tells me that her parents and family in the mainland do not know her present whereabouts.

6. The learned magistrate in passing sentence had regard to the fact that the offences the appellant admitted committing are prevalent in Hong Kong. They, as he said, deprive the authorities in Hong Kong, of knowing who is within Hong Kong.

7. The magistrate had regard to the leading sentencing case of So Man-king and Others [1989] 1 HKLR 142, where the Court of Appeal said that a sentence of 15 months' imprisonment for unlawful remaining was the appropriate sentence after a plea of guilty. The magistrate was satisfied that no humanitarian grounds existed entitling him to reduce that sentence.

8. With regard to the offence of possession of the unlawfully obtained travel document, again the magistrate rightly considered this a serious offence, as it deprives the authorities in Hong Kong of knowing the true identity of persons entering in Hong Kong. He had regard to various appellate cases relating to the level of sentence for this offence, and was of the view that 9 months' imprisonment was the starting point for possession of a forged travel document, after trial. That sentence could be reduced by 3 months in recognition of the appellant's plea of guilty. He took into account the totality principle and ordered that 3 months of the 6 months' sentence passed for the possession of an unlawfully obtained travel document offence be served concurrently with the sentence for the unlawful remaining offence.

9. The magistrate, clearly, had regard to all the correct principles of sentencing in relation to these two offences, and was aware of the leading cases in relation to these offences. There is no way in which his sentences can be said to be unduly severe or manifestly excessive, neither are they contrary to law or principle. He was right in saying that no humanitarian grounds existed entitling him to reduce the sentences he passed on the appellant.

10. For those reasons the appellant's appeal against sentence is dismissed.