HKSAR v. LI XIAO FENG

HCMA286/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 286 OF 2003

(ON APPEAL FROM KTCC 1491 OF 2003)

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J U D G M E N T

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1. The appellant pleaded guilty at Kwun Tong Magistrates' Court on 1 March 2003 to an offence committed on 18 August 2001 of making a false representation to an Immigration Assistant, contrary to section 42(1)(a) of the Immigration Ordinance, Cap.115.

2. She was sentenced to a term of 10 months' imprisonment and she appeals against that sentence complaining that it was too severe.

3. The facts of the offence as admitted by the appellant were these :

4. On 22 February 2003, the appellant was transferred to Immigration custody for repatriation upon completion of a term of imprisonment. Once there a record check revealed that she had previously been to Hong Kong under another identity.

5. When she was asked about that matter the appellant admitted that her name was Li Xiao Feng born on 18 November 1975 : that in 2001, the person who arranged for her to work in Hong Kong gave her a Chinese Permit for travelling to and from Hong Kong and Macau [no.4898462] in the name of Wong Ni born on 17 November 1979. Upon receipt of the said travel document, she said that she noticed that none of the personal particulars recorded on it related to her, except the photograph. Using that document she arrived in Hong Kong on 18 August 2001 and tendered it to an immigration assistant. She was later repatriated to the mainland after legal proceedings for her contravention of immigration laws.

6. On 17 December 2002, the appellant arrived in Hong Kong again this time properly. She was allowed to stay as a visitor for 14 days. However, she was arrested by the police on 20 December 2002 in connection with another criminal offence and she was thereafter sentenced to a term of imprisonment.

7. In his Reasons for Sentence, the magistrate said this :

"... In brief, the Defendant used a false Chinese Permit to enter and depart Hong Kong. The Permit contained false particulars and the only true item was Defendant's photograph. The relevant cases are LIU Chi-ping AR 1/1990 and TAM Kin-sun HCMA334/2000 [in which it was said that], for an offence of this nature, the starting point should be 6 to 18 months' immediate jail. I have heard mitigation by her counsel. Defendant had no similar previous conviction to this particular offence at the time.

Having considered all the factors, the sentence is a starting point of 15 months. However, because of the guilty plea, I reduce it to 10 months."

8. In his written submissions, Mr Madigan for the respondent says (inter alia) this :

"... Moreover if the appellant had been charged with the more apposite charge of possession of a forged travel document, then the 'tariff' sentence of 15 months would have had to have been passed on her...."

9. On the appellant's behalf, Mr Lo of counsel relies upon no fewer than 11 pages of written submissions which relate to some 15 magistrates' appeal judgments between 1993 and 2003. They are extremely helpful and point directly to the problems of sentencing for offences of this nature and to the potential (which has arisen) for inconsistency.

10. The argument which Mr Lo derives from the majority of those magistrates' appeal decisions is that a starting point of 15 months' imprisonment for offences of making false representations to immigration officials (by those who have no previous convictions) is excessive. He seeks to draw a distinction between offences of using forged or false travel documents and those of making false representations relating to such documents.

11. Whilst I readily accept, having read the judgments to which Mr Lo has referred me, that such a distinction has been drawn by some courts I am bound to say that the logic for that escapes me.

12. Whilst, of course, it is so as Mr Lo points out - that in the present case, it was the choice of the prosecution to charge the appellant with the offence of making the false representation rather than with that offence together with an offence of using or possessing a forged or false travel document, the fact of the matter is that the representation made by the appellant was that the travel document was genuine, which it patently was not.

13. In my view, the "distinction argument" to which I have referred best finds expression in the judgments in HKSAR v. Cai Huali & Ors (transliteration) (unreported, 2 January 2003, HCMA1025/2002, HCMA1026/2002 and HCMA1030/2002) and HKSAR v. Yim Lee Kuen (unreported, 28 February 203, HCMA1187/2002).

14. For my part, and with respect, I prefer the reasoning in the latter judgment which questions the logic behind or the justification for the distinction.

15. That said, and for the reason that this appellant was sentenced against a background of case law at least some of which suggests that a starting point in sentence for "misrepresentation cases" should be about nine months' imprisonment, I will allow this appeal by adopting a starting point of 12 months' imprisonment and reducing it to eight months' imprisonment.

16. To that extent, the appeal succeeds and the sentence of 10 months imposed by the magistrate is set aside to be replaced by one of eight months' imprisonment.