HKSAR v. YIM LEE KUEN

HCMA1187/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1187 OF 2002

(ON APPEAL FROM ESCC 3169 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant was convicted on her own plea of an offence of dealing unlawfully with 2,600 dutiable cigarettes contrary to the provisions of section 17(1) of the Dutiable Commodities Ordinance, Cap.109, being the 1st charged offence, and of two offences of making false representations to an immigration officer contrary to section 42(1)(a) of the Immigration Ordinance, Cap.115 ("the Ordinance"), being the 2nd and 3rd offences.

3. The facts of the case were that the appellant was arrested while delivering the cigarettes, the subject of the 1st charged offence, to a street hawker stall. Subsequent enquiries revealed she had entered Hong Kong illegally by producing a false two-way permit on the occasions of the 2nd and 3rd charged offences.

4. So far as the 1st charged offence is concerned, the magistrate took a starting point of three months' imprisonment. He reduced that on the basis of the appellant's plea of guilty to a sentence of two months' imprisonment. So far as the 2nd and 3rd charged offences are concerned, the magistrate took a starting point of sentence in respect of each offence of 18 months' imprisonment and reduced that to 12 months' imprisonment. He ordered all sentences to run concurrently except that four months in respect of the sentence imposed for the 3rd charged offence was to be served consecutively to the other sentences, that resulted in a totality of sentence of 16 months' imprisonment.

5. The appellant complains that the sentences imposed by the magistrate were too severe.

6. So far as the 1st charged offence is concerned the appellant, who had at the time of her sentencing, one previous offence relating to unlawfully dealing with dutiable cigarettes, was on the facts acting as a distributor of the cigarettes to street venders. It was inevitable that a custodial sentence be imposed in respect of this offence given her unlawful presence in Hong Kong at the time and the sentences of imprisonment to be imposed in respect of the 2nd and 3rd charged offences. The starting point of three months' imprisonment was taken in circumstances where the appellant, as I say, was acting apparently as a distributor of the cigarettes, had offended before and was dealing in a not insignificant quantity of cigarettes. Further the magistrate was concerned, as he was entitled to be concerned, that these offences were increasingly common within his jurisdiction. He no doubt took that as an aggravating factor.

7. Taking all these matters together, the starting point of three months' imprisonment adopted by the magistrate cannot be said to be excessive. It is not an issue that the only mitigation available to the appellant was her plea of guilty. Accordingly, the sentence of two months' imprisonment is entirely proper.

8. In respect of the sentences imposed for the 2nd and 3rd charged offences, Mr Lo for the appellant relies on a number of cases which have approved starting points of sentence for factually identical charged offences of between six to nine months' imprisonment. Those cases also involved misrepresentation of identity based upon production of a false two-way permit to Hong Kong immigration officers at border crossings so as to gain entry into Hong Kong : HKSAR v. Fung Lai Wan (unreported), 31 July 2002, HCMA527/2002; HKSAR v. Yang Wai (unreported), 30 October 2002, HCMA791/2002; HKSAR v. Kwok Lai Kwan (unreported), 9 December 2002, HCMA897/2002 and more recently it was stated that an appropriate starting point of sentence in respect of such offences was between nine to twelve months' imprisonment : HKSAR v. Ou Bian Hu, HCMA1029/2002 (unreported).

9. Mr Lo says on that basis the starting points of 18 months' imprisonment taken in respect of the 2nd and 3rd charged offences were plainly excessive.

10. Mr Patrick Cheung for the respondent conceded in respect of each offence a starting point of 18 months' imprisonment was manifestly excessive, given the present state of the authorities. But he argued that so far as the general category of offences is concerned, however charged, relating to offenders entering Hong Kong under a false identity supported by a falsified travel document, that there should be similar levels of sentence imposed. He points out that persons entering Hong Kong by the use of a forged passport face sentences after plea of about 15 to 18 months' imprisonment. He says anyone gaining entry to Hong Kong illegally by way of a forged document is an illegal immigrant as a basic starting point, and if charged with that offence would be liable to imprisonment for 15 months after a plea of guilty. He argues that it is wholly illogical that persons who are charged with an offence such as the present, where the facts of the offence show the defendant gained unlawful entry into Hong Kong with a false travel document and as a result of that necessarily remained in Hong Kong as an illegal immigrant should receive sentences based on starting points of sentence at a level of about half that of starting points of sentences imposed on illegal immigrants generally.

11. He argues further that the mere possession of a forged travel document, if a passport, renders the offender liable to a penalty of 15 to 18 months' imprisonment after plea : R.v. Weng En Xing, HCMA409/1990 and R.v. Wang Ju Wen [1989] 2 HKLR 26. Other areas of apparent disparity exist in sentencing within the general category of immigration offences, for example, transit passengers found to be in possession of a forged passport which, as transit passengers, they had not used in Hong Kong and indeed did not intend to use in Hong Kong, have in practice been sentenced after plea to terms of imprisonment ranging from six to nine months. In that regard in HKSAR v. Ng Lai Kin [1999] 1 HKC 186, a magistracy appeal, the court deprecated the difference in sentences applied between this category of offender and the more usual offender. The court said in that regard :

"I have to say that I have some difficulty with the rationale for such a wide difference between the two [categories of offence], in other words between the sentences imposed for transit cases and non-transit cases. I say that because the major element in sentencing for all cases of this kind to which the courts should have regard is the element of comity, and the need to co-operate for our own benefit and for the benefit of others to prevent or deter travel on false passports."

12. It seems to me that there is even less justification for distinguishing factually between persons gaining entry to Hong Kong by way of a falsified passport and those gaining entry by way of a false two-way permit. Both are travel documents, both are necessarily used, as in the present, to allow the defendant to pretend to be a person he or she is not and so deceive the immigration officer into allowing them entry. It may be true that the production of a false passport is arguably the more serious offence as such a document purports to extend the protection of another sovereign country to the individual concerned whereas a two-way permit goes not much beyond the purpose of permitting the crossing of a border.

13. Balancing that argument, however, is the important fact that the border involved is that which is most vulnerable to illegal crossings into Hong Kong. It seems to me that the use of a false two-way permit in such circumstances is certainly no less serious than the possession of a false passport.

14. Perhaps more cogently, it seems to me that there is considerable illogicality in distinguishing, so far as sentence is concerned, between persons charged pursuant to section 42(1) of the Ordinance with making a false statement to an immigration officer by way of producing a forged or false travel document and so misrepresenting their identity to him and a person who, on the basis of the same facts, is charged with an offence pursuant to section 42(2) of the Ordinance with using a forged or false travel document. Importantly both offences carry the same penalty pursuant to section 42(4).

15. To summarise the above : offenders who come to Hong Kong illegally and remain here without authority contrary to section 38 of the Ordinance are generally, after plea, liable to a sentence of 15 months' imprisonment. All persons in most conceivable factual situations who present a forged or false travel document and so gain entry to Hong Kong would be in breach of section 38 of the Ordinance. Such persons would, if in possession of or having used a forged passport, be liable to a penalty of 15 to 18 months' imprisonment after plea if prosecuted pursuant to section 42(2) of the Ordinance. Why then, given this, should there be a different level of sentencing in respect of persons using forged or false two-way permits to illegally penetrate Hong Kong's most vulnerable border?

16. Mr Cheung's argument gains considerable support also from the reasoning of the Court of Appeal in So Man King [1989] 1 HKLR 142. That case dealt with the appropriate level of sentence to be applied in respect of illegal entry and remaining cases (pursuant to section 38(1)(b) of the Ordinance) and in the course of determining the appropriate level of sentence the Court of Appeal compared the essential criminality the legislation was directed at with other fundamentally similar offences. In delivering the judgment of the court, Cons, Acting CJ said :

" In the course of submissions we have been referred to many authorities that have dealt with the appropriate sentence for offences under s. 38(1) of the Ordinance and the related offences of possession of a forged identity card or using that of another person.

Mr. Cheng Huan for the appellants has argued strongly that there is a significant legal and moral distinction between the two kinds of offence. He suggests, borrowing the words of O'Connor, J. in R.v. Lam Shui-leung [1987] HKLR 57 at 58F, that commission of the latter offences enables the culprits "to masquerade as persons entitled to be in Hong Kong", whereas persons such as the appellants make no such pretence.

... in our view the authorities draw little, if any, distinction in the ordinary run of the mill cases. The substantial element in sentencing for all three offences is the unlawful presence in Hong Kong."

That reasoning was adopted in R.v. Lam Ping Chun [1989] 1 HKLR 161 where the Court of Appeal again said in comparing the sentencing levels for offences of using other person's identity card contrary to Regulation 12 of the Registration of Persons Ordinance and, as it described them, the related offence of landing and remaining unlawfully in Hong Kong that the substantial element in sentencing was the defendant's unlawful presence in Hong Kong which, in normal circumstances, merited a sentence of 15 months' imprisonment after plea. In that regard, the court said :

"... Only a few days ago, in R. So Man-king Mag App No.408 of 1988 [See [1989] 1 HKLR 172], having been referred to the principal authorities dealing with offences against regulation 12 and with the related offences of using a forged identity card and of landing or remaining unlawfully in Hong Kong, all of which can be conveniently taken together as 'immigration offences', we noted that the substantial element in sentences passed for all three offences was the defendant's unlawful presence in Hong Kong, which in itself, in normal circumstances, merited a sentence of 15 months' imprisonment; the actual use of a forged or other person's identity card to obtain some further or particular benefit could be considered an aggravating feature. We reiterate yet once again, that sentencing for these offences is intended to have a deterrent effect."

17. In my view, it is almost unanswerable that the same logic should apply to any similar comparison with offences contrary to section 42(1) of the Ordinance, where a forged or false two-way permit is produced to immigration officers so as to mislead them as to the individual's identity. That is even more so if the comparison be between sentences imposed in respect of section 42(1) offences and section 42(2) offences under the Ordinance involving the gaining of entry to Hong Kong by using false travel documents. In my view then there is considerable merit in Mr Cheung's argument that offences contrary to section 41(1) involving the unlawful gaining of entry to Hong Kong by use of a false two-way re-entry permit, as occurred in the present case, should have sentences imposed after plea which are comparable to sentences imposed in respect of other offences involving the gaining of entry into Hong Kong with false travel documents.

18. I agree that for no apparent reason offences involving the production of a false two-way permit seem to have obtained a sentencing niche for themselves which cannot be justified on the authorities of So Man King and Lam Ping Chun.

19. In my judgment, depending on the circumstances of the case, starting points of sentence of 18 months' imprisonment are certainly justified in the circumstances of the present offences involving the production of a false two-way permit to gain entry to Hong Kong. Indeed, on the authorities, starting points of sentence even higher than that would be justified. Accordingly in the present case, although Mr Cheung conceded that the starting point of 18 months' imprisonment taken by the magistrate was excessive, it seems to me that, as a matter of law, it was not.

20. Nevertheless, given two matters, firstly that the appellant was sentenced against a background of case law which suggested the appropriate starting point should have been nine to twelve months' imprisonment and secondly, given Mr Cheung's concession at the outset of this appeal that a 12 months starting point would have been appropriate as a matter of fairness to the individual appellant, with which I agree, I think it right that she be re-sentenced on that basis.

21. Accordingly, the appropriate starting point of sentence in the circumstances of this case for the offences contained in the 2nd and 3rd charges is 12 months' imprisonment and there being no other mitigation from the appellant's plea of guilty, the sentences imposed in respect of those offences are set aside and substituted in respect of each offence with a sentence of eight months' imprisonment.

22. In considering the totality of sentence, I order that four months only of the sentence imposed in respect of the 3rd charged offence be served consecutively to that imposed in respect of the 2nd charged offence and that the sentences imposed in respect of the 1st charged offence be served wholly consecutively to the other sentences. That is a totality of 14 months' imprisonment.