HKSAR v. SONG JIWEI

HCMA 332/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 332 OF 2008

(ON APPEAL FROM STCC 2020/2008)

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J U D G M E N T

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1. This is an appeal against conviction and sentence.  The appellant is a man in his late twenties from the mainland who was convicted at Shatin Magistrates Court on 15 March of this year of three counts of making a false representation to an immigration assistant under Part 2 of the Immigration Ordinance and one charge of using a false two-way Chinese permit.  The third representation and the use of the false permit occurred at the same time. 

2. The appellant was represented by the duty lawyer.  He pleaded guilty to all four charges.  The brief facts were read out to him in full and he agreed to them.  Those admitted facts revealed that the defendant had said that his date of birth was 3 September 1979 and that, in the past, he had travelled to Hong Kong with a travel document containing that date of birth.  However, in 2006 when his daughter was about to go to school, he had been told, he claimed, by the Mainland authorities that he was too young to have had a lawful marriage which posed him problems in arranging the education of his child.  He had therefore gone to the authorities and applied to amend his date of birth on his household register and Mainland identity card changing it from 3 September 1979 to 3 September 1977. 

3. He used the new document with the altered date of birth to acquire a two-way Chinese permit.  He used this permit to enter Hong Kong on 27 November 2006 and 22 March 2007, thereby committing Charges 1 and 2, and on 13 March 0f 2008, he was stopped by the Immigration authorities and that gave rise to the Charges 3 and 4, the false representation as to his date of birth and the two-way permit actually showing the date of birth and therefore being a false document. 

4. When it came to passing sentence, the magistrate was puzzled by the claim made by a man in his 20s with a daughter getting on now for 7, that the Mainland authorities would ever had said to him that he was too young to have had a lawful marriage.  He actually raised the matter with the duty lawyer and asked the duty lawyer if he had taken instructions upon it inquiring, in effect, how could that be so.  The duty lawyer merely said that those were his instructions and the court proceeded thereafter on the basis that the explanation could not have been a true one.  I have every sympathy for the magistrate acting in that way. 

5. What has turned out though is this:  that, in fact, unbeknownst to anyone in that court, the legal age for marriage for a male in Mainland China is 22 years.  The date of birth given for the daughter - and I will act on this even though there is no conclusive proof of it - is said to be 10 June of 2001.  Thus, if the appellant was born on 3 September 1979, he would only have been 21 years old at that time when his daughter was born so he was right to claim that at that time he could not have been lawfully married. 

6. The next consideration that arose was even if that is the case, how could that have stood in the way of the daughter receiving an education?  No one suggests, in fact, that there would be a complete denial of education.  The way the matter is put before me is that it would merely cause problems and, in support of that, counsel for the appellant has put before me published written material which sets out the Population and Family Planning Law for the People's Republic of China, Article 18 of which declares that the State maintains its current policy of late marriage and Article 41 says that citizens who give birth to babies not in compliance with the provisions of Article 18 shall pay a social maintenance fee prescribed by law.  Exactly what the penalty that the appellant would have faced by having a daughter who was not born of a lawful marriage is not clear but I am satisfied that there would have been some prejudice to him. 

7. It is thus that the rejection by the magistrate of the explanation was made in error.  It led the magistrate to pass sentences which I can describe as being of full weight.  He took a starting-point of 18 months following the case of HKSAR v Lim Yee Kuen, HCMA 117 of 2002.  He reduced the sentences by a third for the pleas of guilty. The resulting sentences of 12 months he overlapped to produce a total sentence of 18 months' imprisonment. 

8. The difficulties in the case do not end there because what has become apparent in the proceedings before me is that the prosecution had not put before the magistrate matters that were directly relevant as to why it may have been he took advantage of a false date of birth, namely, that on 28 August 2006 and 2 September of 2006, this appellant had been refused entry by an Immigration officer at the border.  Why that was so has not been revealed but it was of obvious relevance.  The other thing that the prosecution had not revealed to the magistrate in their brief facts was that at an interview between the appellant and an Immigration officer, he was asked why did his date of birth on the permit differ from the date of birth that had been given previously.  The answer recorded was this:

"In 2006, my child need to attend school.  Because my marriage age is too young , therefore, I changed it from 1979 to 1977.  Moreover, because previously I used the 1979's true identity to enter Hong Kong, I was refused entry to Hong Kong by you, therefore, it is logical to change my date of birth to 1977, therefore, you can let me enter Hong Kong."

9. The significance of the refusals of entry and what was said in the interview are obvious.  That material, in fact, only came to light in the second hearing before me.  The first hearing was adjourned for a variety of reasons, one of which was so the appellant could enjoy representation by Legal Aid and I have been much helped by the attendance of Mr Robert Pang on the appellant's behalf. 

10. When it came to dealing with the appeal against conviction, Mr Pang realistically was unable to make any submission to me which would justify vacating the pleas of guilty.  The appellant, before he was represented, addressed me directly about the matter and has been able to develop anything thereafter, but he also is unable to put such before me.  He caused to be faxed to the court, a variety of documents from the Mainland.  Those documents suggest that his true date of birth is 1977 and not 1979.  They include purported declarations from the Public Security Bureau who claim to have investigated the hospital records and the like.  But there are obvious problems with the provenance of these documents - they do not appear on letterheads; they are faxed - in a way to which the courts are not strangers, and the weight that can be given to them is significantly limited. 

11. It is the case of HKSAR v Wong Chi Yuk Magistracy Appeal No. 381 of 1999 heard by the Court of Appeal that sets out helpfully the circumstances in which pleas will be treated as a nullity or allowed to be vacated.  The appellant is unable to demonstrate that he falls into any of the categories set out there.  His was a clear unequivocal plea and, for reasons of policy, he remains stuck with them. 

12. In those circumstances, his appeal against conviction is dismissed.  It leaves the appeal against sentence which I confess has not been easy.  Whilst the appellant maintains that 1977 is his true date of birth, I cannot act on that basis.  The documents from the Mainland cannot, by themselves, bear the weight that would allow me to act on them to make that finding.  Not only that, such a finding would do violence to the acceptance of the pleas of guilty. 

13. We discussed in the course of argument whether an appropriate course would be to remit the case to the Magistrates Court to direct a Newton hearing but that was not a course that commended itself to the appellant and, whilst it might have provided some sworn evidence, I do not think it would, in fact, have made the decision any much the easier.  I really mention it because I would not want it thought that the appellant was denied an opportunity to prove in evidence that which he asserts.

14. It is common ground in the case that the appellant comes from a rural area and he does not appear to be a particularly sophisticated or educated man.  In those papers from the Mainland is a document which is an application to change the date of birth.  It is dated 21 August of 2006.  I am willing to act on the basis that that is accurate.  Whether or not the basis for the application was a true one, I do not know.  The significance of the date is that it ante-dates the refusals of entry at our border and Mr Pang puts the mitigation like this:  that the first motive and reason to change the date of birth related to the legitimisation of the daughter and was not aimed at getting himself into Hong Kong by hiding his true identity.  I have grave doubts about accepting that argument, but I will.  It is not a conclusion to which the Respondents take any forceful objection. 

15. Mr Pang says therefore that the effect of the date of birth being changed that allowed entry into Hong Kong when he would otherwise probably would have been refused was an additional bonus.  I will accept that.  It is thus not a case where a man falsified a document or told lies to an Immigration officer in a scheme designed for him to cross a border but a case where the appellant was canny enough to realise that the change of birth would have that happy result for him and the mischief of his conduct lies in not declaring that to the authorities when he came here. 

16. Eighteen months is a suitable starting-point for people who deliberately set out to get into another country by using a false identity.  Because of the peculiar circumstances of this case, I will reduce the total sentence of imprisonment to one of 9 months and, for convenience, I shall pass that sentence concurrently on each of the four charges.  I cannot see any merit in any overlapping. 

17. The resolution of this matter has taken three hearings before me and, in between two of them, I allowed the appellant bail for a week because, at that stage, the court was ignorant of the refusals of entry and of what had been said in the interview with the immigration officer.  I mention this because there is a concern that because of that granting of bail for that short period, the time spent in custody prior to the granting of that bail since conviction would not count towards the appellant's sentence. 

18. It is for that reason I therefore refer to section 122 of the Magistrates Ordinance.  My reading of that section is that the time spent in custody since conviction up until the time I granted bail, and the custody after I revoked his bail until now, will count towards the sentences I have imposed today.  Section 122 (3) gives me power to direct otherwise.  I wish to make clear that I do not direct otherwise and that these sentences are passed on the basis that the time spent in custody so far will count towards those sentences. 

19. The final thing to say, of course, is that the fact that I have passed a different sentence from the very experienced magistrate who passed the original sentences is explicable entirely on the basis that the relevant information was not before him.