HKSAR v. ZHANG DAN

HCMA 442/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 442 OF 2006

(ON APPEAL FROM KCCC 2169/2006)

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REASONS   FOR   JUDGMENT

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1.  The Appellant, a 21-year-old female, pleaded guilty before a Magistrate on 11 April 2006 to two charges, possession of a false instrument contrary to section 75(2) of the Crime Ordinance, Cap. 200, and breach of conditions of stay contrary to section 41 of the Immigration Ordinance, Cap. 115.

2.  The admitted facts established that she had arrived in Hong Kong on 22 January 2006 and been granted permission to stay for a period of seven days.  To gain admission to Hong Kong, she used a China two-way permit issued to her.  Subsequent to her arrival in Hong Kong she gave that permit to a third party who altered the impression of the Immigration Department to the effect that she was entitled to remain in Hong Kong for a period of 90 days.

3.  The Appellant was found in a park in Mongkok at 01h40.  She told the police that she was unemployed.  In mitigation in the Magistracy, she said that she was a factory worker earning RMB800 per month and was in Hong Kong simply for an “extended holiday”.  She also told the police that she had paid the unnamed person $7,000 in order for the alteration to be effected to her permit.  These were the facts upon which the Magistrate sentenced the Appellant.

4.  On the 1^st charge she was sentenced to serve a period of 12 months imprisonment, on the second, three days with those sentences to be served concurrently with one another.  She appeals the sentence on the 1^st charge only.

5.  Mr James Campbell of counsel, who appears both here and in the court below, contends on behalf of the Appellant that the Magistrate erred in principle and that the sentence on the 1^st charge is manifestly excessive.

6.  There is a further specific complaint contained in the perfected grounds of appeal against sentence that the Magistrate failed to allow the usual one third discount in respect of the plea of guilty tendered by the Appellant.

7.  In arriving at the sentence imposed the Magistrate had regard to the decision of the Court of Appeal in HKSAR v. Li Chang Li [2005] 1 HKLRD 865.  Somewhat surprisingly, no translation of the judgment, which is reported in Chinese, was made available to me.  As it was plain that the Magistrate simply used it as a point of reference, I did not regard it is necessary to adjourn the hearing of the appeal to obtain a translation.  Both Counsel were in a position to make such use of the judgment as they felt was necessary for the purposes of this appeal.

8.  There can be no sensible suggestion from the Statement of Findings that the Magistrate regarded the decision as binding upon him.  He did not do so.  He was plainly aware that the decision related to possession of a forged identity card whilst this matter relates to possession of a false instrument.

9.  A criticism is made of the Magistrate that he treated the Appellant’s “motive” for possession of the instrument, namely to prolong her stay in Hong Kong, as the point of comparison with LI Chang Li.  In truth what the Magistrate was saying, both in his exchange with counsel at the time of sentencing and in his Statement of Findings, was that the mischief with which he was concerned, namely a person remaining in Hong Kong beyond the permitted length of stay, was the same whether a forged China two-way permit or a forged identity card was the document which was to be used to achieve that purpose.  In this sense, the nature of the document used did not change what he referred to as “the degree of culpability”.  In that regard he was plainly correct.

10.  I reject entirely the suggestion made in submission before me that there was an element of prejudice in the Magistrate’s sentencing.  That is an entirely unfounded suggestion which should not have been made by counsel.

11.  In the written submissions and in the course of argument I was referred to sixteen previously decided matters dealing with various aspects of sentencing relating to immigration or immigration related offences.  There is nothing to be gained by recitation of all of these authorities.  Their fate is to demonstrate, once again, the wide range of sentences which are imposed in matters that relate to immigration related offences whatever the individual nature of the charge may be.  Further, I regard as being of limited value decisions which were arrived at some twenty years ago for use as suggested guidance for sentencing in modern times where circumstances have changed so greatly in the intervening period.

12.  That said, I am aware of the general level of sentences which are imposed in matters similar to the present.  Although this is an offence which involves a false instrument, it relates to matters concerning immigration and the unlawful presence of persons in Hong Kong.  It is appropriate therefore to have regard to the overall sentencing trends which deal with matters of that nature.

13.  Counsel were unable to refer me to, nor am I aware of, any decision relating to an offence of this precise nature where the document concerned is an unlawfully altered China two-way permit.

14.  This may be due, in part at least, to a number of options being open as to the nature of the charge laid.  It is hard to perceive any consistent pattern in the way in which matters are charged.  HKSAR v YIM Lee Kuen HCMA 1187/2002 is a good illustration.  In that matter the appellant had used a false instrument, a false two-way permit, to make representations to an immigration officer: she was charged under s. 42(1)(a) of the Immigration Ordinance, Cap. 115.

15.  Reference there was made to HKSAR v OU Bian Hu HCMA 1029/2002 where it was held that the appropriate starting point for an offence under s. 42(1)(a) of the Immigration Ordinance where a false two-way permit was used to make the representation was 9 to 12 months imprisonment.

16.  In YIM Lee Kuen, Deputy High Court Judge McMahon, as he then was, observed:

“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.”

… 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.

To summarise:  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.”

and later:

“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.”

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.

17.  As was to be expected, the Appellant’s counsel sought to minimize the seriousness of the offence suggesting that it was “simply the alteration of some dates” on the permit.  With respect, that ignores the reality of the situation.

18.  The effect of the alteration, and according to her own counsel, the intention of the appellant, was to enable her to remain in Hong Kong beyond the authorized date.  The purpose of the falsification of the document, for which she paid the equivalent of almost nine months income in the Mainland, was to conceal from any person legitimately enquiring the fact that she was not entitled to be present in Hong Kong.  Whatever her expressed motive may have been for such a course of conduct, the reality of the situation is that that was the purpose of the alteration.

19.  Counsel for the Appellant rightly points out that there is no evidence that she had used the altered permit by the time she was apprehended:  that is reflected by charge.  He further points out that there is no evidence, particularly, that she had used or would use it in an endeavour to obtain employment.  Thus the Magistrate was, and I am, concerned with the straightforward possession of the false instrument.  Conversely, neither of us is required to ignore the effect of the possession of that document, to conceal the fact of the Appellant’s wrongful presence in Hong Kong.

20.  In my judgment, a distinction between the possession of a forged Hong Kong identity card (such as was the case in LI Chang Li) and the instant charge is justifiable.

21.  Firstly, the legislature recognizes such a distinction as the maximum sentence prescribed in respect of the offence of possession of a forged identity card is one of ten years imprisonment (section 7(A)(1) of the Registration of Persons Ordinance, Cap. 177) whilst the maximum sentence in respect of the present offence is three years imprisonment.

22.  Secondly, in this matter, there was no attempt by the Appellant to conceal her identity, which would be the usual inevitable consequence of possession of a forged identity card.

23.  However, there may well be instances where the identity of the holder of a China two-way permit may also be concealed, where for example a person subject to a Deportation Order returns to Hong Kong using a permit with false personal particulars.  In such instance, there may be no justification for any distinction being made between the two offences in terms of sentencing.

24.  Three of the matters to which I was referred, namely HKSAR v. Nguyen Chi Trung HCMA 1095 of 2001, HKSAR v. Hoang Van Gia HCMA 690 of 2002 and HKSAR v. Vu Thi Tu HCMA 1048 of 2001 related to possession by the respective Appellants of forged Construction Industry Safety’s Certificates.  In each instance, a starting point of twelve months imprisonment after trial was regarded as appropriate.

25.    Miss Lily Wong, who appears for the Respondent, suggests that a more substantial sentence would be appropriate in the present instance given the nature of the document to which the falsity has been applied.  Whilst I apprehend the force of her argument, in my judgment the nature of the document is offset by the fact that in the appeals to which I have referred there was every reason to believe that the respective holder intended to use the document primarily for the purpose of obtaining employment.

26.  In my judgment the appropriate starting point after trial for the Magistrate to have adopted would have been one of twelve months imprisonment.  From that starting point, he would have deducted the obligatory one third discount in recognition of the Appellant’s plea resulting in a sentence of eight months imprisonment.

27.  Consequently the Appeal succeeds in respect of the 1^st  charge and the sentence is reduced to one of eight months imprisonment.  The sentence on the 2^nd charge and the order made in respect of the two charges remain undisturbed.