HKSAR v. ZHANG WEI

HCMA513/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.513 OF 2004

(ON APPEAL FROM ESCC 2020 OF 2004)

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J U D G M E N T

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The charges

1. The appellant (defendant) was charged with two offences :

(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; and

(2) breach of condition of stay - overstay, contrary to section 41 of the Immigration Ordinance, Cap.115.

The sentence imposed

2. The defendant pleaded guilty to both charges in Eastern Magistracy before Principle Magistrate Mr Candy. He also agreed the facts. Having heard the mitigation, the learned magistrate imposed a term of 12 months for the first offence and 2 months for the second offence. He further ordered that the two terms to run consecutively, making it a total sentence of 14 months' imprisonment. The defendant now sought to appeal against the sentence.

The facts

3. The facts admitted by the defendant were as follows :

" At 1930 hrs on 2004-05-01, duties of Task Force NPDIV (PW1-2) arrested a male (Deft) at the junction of Tong Shui Road and King's Road, North Point because of his overstayer status.

2. Travel Index Check of Deft revealed he entered Hong Kong via Lo Wu Control Point at 1140 hrs. on 2004-02-14 and he falsely represented to an Immigration Assistant that he was in the name of ZHANG Wei and he was born on 1970-12-12. Deft was allowed to stay in Hong Kong until 2004-02-21. Confirmed with the Immigration Department that Deft had not extended his stay after it had expired.

3. Further record check of Deft revealed Deft had entered Hong Kong in the year of 1994 and 2003 under the name of CHEUNG Pang. Under reminded caution by PW4 for offence (1), Deft stated he had changed his name and Date of Birth in PRC intentionally in order to obtain a Two-way Permit from PRC because he knew he was not allowed to enter Hong Kong under the name of CHEUNG Pang."

The mitigation

4. For his mitigation, the defendant was represented by Mr Newman Wong on the instruction of the Duty Lawyer Scheme. He told the magistrate that the defendant was 33 years of age and he was unemployed in the Mainland. Mr Wong stressed the fact that the defendant had pleaded guilty to the charges and he invited the Court to impose a concurrent sentence.

5. In his Reasons for Sentence, the magistrate stated that the defendant was "a persistent offender who, by his actions on this occasion, showed a complete disregard for the immigration laws of Hong Kong". He took 18 months as the starting point on the first charge and 3 months on the second charge in view of the aggravating features. He gave the usual one-third discount for the plea but ordered the two terms to run consecutively.

6. In his oral reasons given at time of sentence, the magistrate said that the defendant had committed the first offence deliberately in order to avoid the consequences of his previous convictions. He further said that there was no reason to think that the defendant would not have continued to overstay had he not been arrested, and the fact that this was his third time being convicted would be an aggravating feature.

The grounds of appeal

7. Mr P.Y. Lo, for the defendant in the appeal sought to attack the sentences on three main grounds :

(1) The learned magistrate erred in taking 18 months' imprisonment as the starting point for the charge of making a false representation to an immigration assistant in that he wrongly regarded as aggravating features the fact that the Appellant used false travel documents to disguise his true identity, and that the Appellant had previously committed offences in Hong Kong. It was wrong to describe the Appellant as a persistent offender.

(2) The learned magistrate erred in taking 3 months' imprisonment as the starting point for the charge of breach of condition of stay by overstaying in that period of overstaying namely 2 months and 9 days was a relatively short period of time.

(3) The learned magistrate erred in not considering the totality of the sentence imposed for the two offences. Had he done so, he would have ordered concurrent sentences.

8. Mr Lo had prepared a very thorough written submissions to deal with each of the grounds and he had amplified the arguments in his oral submissions in Court.

The first ground

9. Mr Lo said that recent authorities on this offence indicated that the "normal" starting point should be one of 12 months, therefore the 18 months adopted in this case was too high. He had cited a number of authorities to illustrate this point. He further argued that the magistrate had wrongly taken, as aggravating features, the fact that the appellant had used false travel documents to disguise his true identity and that the appellant had previously committed offences in Hong Kong.

10. What Mr Lo was submitting was that the deliberate conduct that the magistrate had referred to was really an essential ingredient of the first charge. It would, therefore, be wrong for the learned magistrate to take it as an aggravating feature for the purpose of sentence. Counsel pointed out that there was no evidence to show that the defendant was going to commit any offences here in Hong Kong, and the magistrate should not have enhanced the sentence because of his past convictions. He further submitted that the defendant's previous convictions were really offences of breach of condition of stay and did not involve the making of false representation to the Hong Kong immigration officer.

11. The defendant's criminal record revealed that he had been convicted in Hong Kong in 1994 for theft and breach of condition of stay. He was sentenced to 15 months' imprisonment. He was again convicted in 2003 and the offences were also theft and overstaying. The sentence was 12 months' imprisonment. According to the brief facts of the present case, because the defendant knew that he could no longer use his name "Cheung Pang" to come to Hong Kong, so he decided to change his name and date of birth in order to obtain the two-way permit from the Mainland authorities. He used the document to gain entry to Hong Kong pretending to be a different person. Then he overstayed on his unlawfully obtained visa from 22 February 2004 until he was caught on 1 May 2004. In these circumstances, it would not be wrong to describe the defendant to be a persistent offender. Of course, Mr Lo was right when he said that a defendant with convictions of simple possession of dangerous drugs could not be taken as a repeated offender when he was to be sentenced for a trafficking offence. There is a qualitative difference between offences involving simple possession of drugs and trafficking in drugs. But here, in order to come to Hong Kong again, the defendant had used false information to obtain the document and deceived the Hong Kong immigration. And as he had done before, he overstayed again. It would defy common sense if he were not to be treated as a repeated offender.

12. It is true that in this case there is no direct evidence to suggest that the defendant was about to commit another crime in Hong Kong, but I do not think the magistrate had placed too much weight on this issue, otherwise the starting point might even be higher. It appeared that his main consideration was the fact that the previous convictions and sentences had not deterred the defendant from committing similar offences again. In fact, when he could not come to Hong Kong legally, he resorted to the use of false personal particulars to gain entry and then stayed on unlawfully.

13. There is no tariff guideline for the offence under section 42(1) of the Immigration Ordinance. Mr Lo had shown me three magistracy appeal decisions by the Court of First Instance. They are Li Xiao Feng¹, Xue Xiao Ming² and Zhang Chong Yong³. They seemed to suggest that the starting point for the offence of making a false representation to an immigration assistant would be 12 months' imprisonment. But the artificial distinction between the sentence of this offence and the usual sentence of 15 months' for the other immigration offences such as the use of a forged or false travel document under section 42(2) of the same ordinance had been rightly criticized. (See Yim Lee Kuen HKMA1187/2002). This view was adopted and applied in the subsequent case of Chau Kin Chau⁴ where the starting point of 21 months was not disturbed. I must say that I also agree with the view expressed in Yim Lee Kuen and that the starting point for the offences involving the gaining of entry into Hong Kong with false travel documents should be, after plea, in the range of 15 to 18 months' imprisonment, subject to the particular circumstances of the case. As for this defendant who had committed similar immigration offences before, the starting point of 18 months could not be criticized.

The second ground

14. In relation to the overstaying offence, again there is no tariff for this type of offence, but having reviewed the authorities cited by both sides, it does seem that the period of overstaying is one of the most important factors to be taken into account. (See HKSAR v. Tiongson Patricia Manalod [2002] 1 HKLRD 681, HKSAR v. Kinanti HCMA328/2004, HKSAR v. Liana HCMA385/2004). In the circumstances, the starting point of 3 months when the defendant had overstayed for a period of about two months would appear to be too high. As the starting point in the first charge had already been enhanced due to the factor of persistent re-offending, I take the view that a concurrent sentence would be appropriate considering the totality principle.

15. The appeal is therefore allowed to the extent that the two terms of imprisonment are to run concurrently.

1 HKSAR v. Li Xiao Feng HCMA286/2003

2 HKSAR v. Xue Xiao Ming HCMA54/2004

3 HKSAR v. Zhang Chang Yong HCMA1256/2003

4 HKSAR v. Chau Kin Chau HCMA928/2003