HKSAR v. VEKAS, SUNNI

HCMA 1120/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1120 OF 2003

(ON APPEAL FROM KTCC 5194 OF 2003)

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J U D G M E N T

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1. This Appellant pleaded guilty to one charge of 'Breach of a Deportation Order', contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115. He was convicted after trial on a second charge of 'Possession of a False Instrument', contrary to section 75(2) of the Crimes Ordinance, Cap. 200. The false instrument was an impression of a visa/entry permit for Hong Kong made on a page of a Pakistani Passport and purporting to be issued by the office of the Government of the Hong Kong Special Administrative Region, such impression being false.

2. The Magistrate found that the Appellant entered Hong Kong from the Mainland at the Lo Wu Border Control Point and presented his passport with the forged visa entry in it. The Immigration Assistant was suspicious, detained the Appellant and seized the passport.

3. The Magistrate gave in his Reasons for Sentence details of how the visa had been obtained and how its falsity was investigated and established. The Magistrate was satisfied that at the time of the offence the Appellant knew that the visa entry stamp was false. The Immigration Officer who allegedly had authenticated the visa entry, confirmed that the authenticating stamp on the passport was not his.

4. The Appellant had come to Hong Kong previously, first arriving in 1995 under the name of Shafaqat Ali Ramzan, born on 6 January 1975. The Appellant served various sentences of imprisonment and was deported to Pakistan in January 1999 under a Deportation Order dated 13 January 1999. That order was not limited as to time and the Appellant knew about the order.

5. In November 2001, the Appellant was again deported to Pakistan under the same Deportation Order. On that occasion, he was using the identity of Liaqat Ali.

6. The Appellant said that the name and date of birth under which he was subsequently charged were correct. He had changed his name from Liaqat Ali in order to be able to enter Hong Kong without hindrance and since March 2003 he had used the passport on a number of occasions to enter Hong Kong.

7. The Appellant had 5 previous court appearances and a total of 9 convictions.

(1)	on 3 March 1995, for breach of condition of stay, he was sentenced to 28 days' imprisonment;
(2)	on 29 December 1995, for two offences of making a false representation to an Immigration Officer, he was sentenced to a total of 3 months' imprisonment;
(3)	on 5 January 1998, for one offence of breach of condition of stay, he was sentenced to 1 month's imprisonment and the false representation charge earned him another 1 month's imprisonment, these sentences ran concurrently;
(4)	on 16 November 1998, for having a false entry permit, he was sentenced to 5 months' imprisonment and for making a false representation to an Immigration Officer to 4 months' imprisonment; those sentences to be concurrent; and
(5)	on 5 June 2001, he was given an absolute discharge for an offence of fighting in a public place and for a breach of the Deportation Order, he was sentenced to 12 months' imprisonment.

8. The Appellant's criminal record is in the name of Liaqat Ali and that record shows the Appellant is known by four other names, as well as the name under which he is now charged.

9. In mitigation, the Magistrate was told that the Appellant is 31 years old and married with two children aged 2 and 3 years. He was told the Appellant made the visits to Hong Kong to support his family. The Magistrate was shown documents from a hospital in Lahore, Pakistan purporting to show that the Appellant's wife was suffering from breast cancer.

10. Today the Appellant has repeated the mitigatory grounds before this Court and again relies on the medical reports.

11. The Magistrate considered various sentencing authorities in some detail before sentencing. He considered, correctly, that the present breach was a flagrant flouting of a direction i.e. the deportation order made in respect of the Appellant. He took into account the fact that the Appellant was a repeated offender and sentenced him into 18 months' imprisonment. He took a starting point of 12 months for the second charge and as the Appellant had not pleaded guilty to that offence, he passed a 12 months' sentence there being no mitigation but his plea. He considered the medical condition of the Appellant's wife did not amount to a mitigating factor. He found the two offences were linked and that there had been planning and preparation for the unlawful entry into Hong Kong. Accordingly he ordered that 3 months of the sentence on Charge 2 run consecutively to the sentence on Charge 1. The total sentence was 21 months.

12. I can see no basis for upsetting the sentences, as they are not excessive or wrong in principle. The appeal against sentence is dismissed.