HKSAR v. HETTI ARACHCHIGE, SUMITH JAYASHANTHE

HCMA333/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 333 OF 2011

(ON APPEAL FROM STCC 1319 OF 2011)

----------------------

------------------------

J U D G M E N T

------------------------

1.  On 23 March 2011 the appellant pleaded guilty before Mr Andrew Ma, Principal Magistrate, to a charge of making a false representation to an immigration assistant, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong. He was sentenced to be imprisoned for 12 months.

2.  This is his appeal against that sentence. 

Background

3.  The appellant, the holder of a Sri Lanka passport, entered Hong Kong on 9 October 2009 using that document.  He overstayed the visa that was granted to him.  On 10 November that year he surrendered to the police.  A routine fingerprint examination revealed that on 11 June 2005 he had entered Hong Kong by using a passport of another person whose surname was Jayasinge—who as it transpired was his cousin.  Thus it was he was charged that on 11 June 2005 he falsely represented to an immigration officer that he was that person. 

4.  Subsequent to surrendering to the police on 10 November 2009 he made application to be treated as a torture claimant and for political asylum.  I am advised that the torture claimant application has been withdrawn and the other application is pending. 

5.  When sentencing the appellant, the magistrate took as a starting point a sentence of 18 months’ imprisonment.  He gave full credit to the appellant for his plea of guilty and reduced that sentence to 12 months’ imprisonment.  When doing so the magistrate observed that the fact that the appellant had surrendered to the police on this occasion had no bearing on the offence with which he was then charged. 

6.  When adopting the starting point he did the magistrate said :

“Those making false representation as to identity should expect the same punishment for using a false travel document, and the usual term is 12 months’ imprisonment after a plea of guilty : HKSAR v Chu Man [1999] 1 HKC 189.”

7.  Before me today the appellant seeks to have his sentence reduced.  He does so by reasons of the fact he says that his wife is suffering from an illness in Sri Lanka and needs his assistance.  This was a matter that the magistrate was alerted to when he imposed the sentence he did.  He also submits that he is now in a position to return to Sri Lanka and take up employment.  Be that as it may, the sentence was entirely proper and consistent with accepted levels of sentences for this offence.  The appeal is dismissed.