HKSAR v. FU JIANPING

HCMA217/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.217 OF 2006

(ON APPEAL FROM ESCC 4373 OF 2005)

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J U D G M E N T

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1. This is an appeal by the appellant against sentences totalling 18 months imposed on her by Mr Candy sitting at Eastern Magistracy on 26 October 2005 following her conviction upon her own plea to four offences :

(1) using a forged identity card contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177;

(2) breach of her conditions of stay contrary to section 41 of the Immigration Ordinance, Cap.115 by overstaying beyond the seven days for which she had been permitted to remain in Hong Kong;

(3) breach of her conditions of stay contrary to section 41 of the Immigration Ordinance and regulation 2(1)(a) of the Immigration Regulation, Cap.115 by unlawfully taking up employment; and

(4) using an unlawfully obtained travel document contrary to section 42(2)(b) and 42(4) of the Immigration Ordinance, Cap.115.

2. The Magistrate activated a suspended sentence of 14 days’ imprisonment which had been imposed upon her on 13 December 2004. 

3. In respect of the 2005 offences, the Magistrate imposed sentences of 12 months’ imprisonment for using a forged identity card (Charge 1), 1 month’s imprisonment for breaching her condition of stay by overstaying (Charge 2) and 2 months’ imprisonment for breaching her conditions of stay by taking up unauthorized employment (Charge 3).  All those sentences were ordered to run concurrently.  In respect of the 2004 offence of using an unlawfully obtained travel document (Charge 4), the Magistrate imposed a sentence of 12 months’ imprisonment, 6 months of which he ordered to run consecutively to the other sentences making a total sentence of 18 months’ imprisonment. 

4. The appellant, a 47-year-old Mainland resident, entered Hong Kong on 1 June 2004 using a two-way permit issued to her cousin (Charge 4).  She breached her condition of stay on that occasion and on 13 December 2004 was given a sentence of 14 days’ imprisonment suspended for 24 months. 

5. She entered Hong Kong again on 5 June 2005 as a visitor and was permitted to stay seven days until 12 June 2005 but it was a condition of entry that she should not take up employment in Hong Kong. 

6. Almost four months later, on 10 October 2005, in breach of her conditions of stay, she was found working in a restaurant in King’s Road, North Point.  She admitted that she used a forged identity card which she had bought in the Mainland to gain the employment (Charge 1).

7. The Magistrate’s sentences cannot be criticized.  As he pointed out, the proper sentence on Charges 1 and 4 was 15 months’ imprisonment on a plea of guilty.  He said that as a humanitarian gesture he was imposing 12 months’ imprisonment on each charge.  It was perfectly proper to order 6 months of the sentence on Charge 4 run consecutively to the sentences on the other charges. 

8. The appellant does not suggest the sentences are wrong in principle.  She merely asks for reduction of sentence on the ground that she is truly remorseful and that there is no one to take care of her family in China including her son and daughter aged 11 and 8 respectively.  She told the court today that her husband had suffered an industrial accident two years ago in May 2004 rendering him disabled and resulting in her 11-year-old daughter having to care for the whole family including two elderly family members in their eighties. 

9. The appellant is a woman who is very selective when it comes to the truth.  She says that after her husband’s accident in May 2004, she had returned to the Mainland to look after him.  If that is correct, her statement that this is only the second time she has come to Hong Kong cannot be correct.  If it is correct that her husband sustained an accident in May 2004, then she left her family almost immediately afterwards when she entered Hong Kong on 1 June 2004 and stayed here for six months.  If her husband is disabled as a result of industrial accident, it is hard to understand why her lawyer did not say so in mitigation in the Magistrate’s court.  Regarding her husband, her lawyer merely said that he was old and could not secure gainful employment.  I find that I can place very little weight on what she has told the court. 

10. The fact is that she has been prepared to leave her children for long periods in 2004 and 2005.  She would have known when she returned to Hong Kong with a suspended sentence hanging over her that she was risking not being able to return home if she was apprehended.

11. I find no reason to interfere with her sentences and I dismiss the appeal.