HKSAR v. LI YIK MING AND OTHERS

HCMA 207/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 207/2001

(On appeal from Magistracy Case No. WSCC 339/2001)

____________________

____________________

______________________________

JUDGMENT

______________________________

Introduction

1. The 1st Appellant pleaded guilty to one charge of Making a False Representation to an Immigration Assistant Lawfully Acting under or in the Execution of Part II of the Immigration Ordinance, contrary to section 42 (1)(a) of the Immigration Ordinance, Cap. 115 while the 2nd and 3rd Appellants each pleaded guilty to one charge of Aiding, Abetting. Counselling or Procuring the Making of a False Representation to an Immigration Assistant Lawfully Acting under or in the Execution of Part II of the Immigration Ordinance, contrary to section 89 of the Criminal Procedure Ordinance, Cap 221 and section 42(1)(a) of the Immigration Ordinance, Cap. 115. They were each sentenced to 3 months imprisonment by a magistrate at the Western Magistracy. They now appeal against sentence.

Brief facts

2. The Appellants in this case are a father, mother and son. The father and mother (2nd and 3rd Appellant respectively) were legal residents in Hong Kong whilst the son (1st Appellant) was a visitor from the mainland.

3. The 1st Appellant last arrived in Hong Kong on 14th March 1999 on the strength of his Chinese permit which bore his true birth date, 15th October 1978. He was permitted to stay until 11th April 1999. On 12th April 1999 he surrendered to the Immigration Department after having overstayed and laid claim to right of abode in Hong Kong. Inquiries however revealed that he had previously sneaked into Hong Kong on 9th January 1997 and surrendered to the Immigration Department the following day, at which time he had (falsely) claimed to have been born on 15th October, 1982. The 1st Appellant had been immediately repatriated on that occasion.

4. Under caution the 1st Appellant admitted that he had misrepresented his age in 1997 because he had heard a rumour that persons born to Hong Kong residents who were under the age of 16 were allowed to stay in Hong Kong. Both the 2nd and the 3rd Appellants had heard of this rumour and the 3rd Appellant, before the 1st Appellant sneaked into Hong Kong in 1997, understated the 1st Appellant's age by 4 years when she arranged to obtain a People's Republic of China birth certificate, households register and notary certificate of relationship through a middleman for a fee of RMB $850. All these documents bore the false date of birth.

5. The 2nd Appellant was also aware that these documents were false. He and the 3rd Appellant accompanied their son, the 1st Appellant, to the Immigration Department on 10th January 1997 and he falsely represented that the 1st Appellant was born on 15th October 1982 when he filled in the information sheet and passed the false documents to the immigration staff.

Grounds of appeal

6. Although Mr. Michael Poll, counsel for all three Appellants, submitted 5 grounds of appeal, the main thrusts of the appeal were:

1. The learned magistrate erred in passing a deterrent custodial sentence in this case on account of prevalence;

2. The learned magistrate erred in failing to take fully into account the effect upon the family if all 3 members were imprisoned; and

3. The learned magistrate erred in failing to give credit to the Appellants for seeking to correct their former false representation.

Offence prevalent?

7. Mr. Poll's complaint on this ground was that there was no evidence before the learned magistrate that at the time of the commission of the offence in January 1997 the offence was prevalent. The learned magistrate should have sentenced the three Appellants in accordance with the practice prevailing at the time of the offence.

8. The learned magistrate in his "Reasons for Verdict on Sentence" (p. 24 of the Appeal Bundle) has this to say:

" This however was viewed as a most serious and prevalent offence, involving as it did falsely reporting to circumstances which were designed to ensure that D(1)'s [1st Appellant] immigration status was permanently changed in a manner which they all believed would be to the family advantage.

In determining that only a deterrent sentence was appropriate to meet such conduct I considered counsels submission which included reference to the matter of SIT Yuk Keung, unreported Mag. App. No. 1016 of 1999 which I believed was directly relevant to the matter before me and of which decision I had previously been unaware.

In that matter her [Ladyship] Mr[s]. Justice Bok[h]ary had considered the case of a father and son who had appeared and pleaded guilty to making false representation to an Immigration Officer charges (sic) - arising out of an attempt to present false credentials concerning the right of a third party, a family member, to enter and remain in Hong Kong. In that case, Her [Ladyship] referred to the success in Hong Kong, of the particular appellant and also to the fact that this was not seen to be a prevalent offence.

It appeared however that the true situation reference prevalence, over a long period of time, was not made known to Her [Ladyship] and finally after careful consideration I did not feel that I could ignore that fact.

I felt therefore that as this was a prevalent offence which involved a misrepresentation as to what the defendants believed was a most crucial matter, that I should impose a deterrent custodial sentence albeit a lenient one and allow the appellants bail pending appeal."

9. A magistrate may increase the level of sentence which has hitherto been passed in respect of a particular offence if he is aware that the type of offence is on the increase and is the cause of concern not only to him but to the public generally: see R v Cheng Wai-man, unreported, MA 302/1992 per Barnett J. at page 5. The learned magistrate is a very experienced magistrate, having sat at the Western Magistracy for a long period of time. I would be slow to say that he did not know whether a particular offence was prevalent or not. What concerns me is that the present offence took place in January 1997 and the Appellants were not convicted until early this year (some 4 years later). The authority he referred to (i.e. SIT Yuk Keung (supra)) was an appeal in 1999. Although the learned magistrate referred to Bokhary J. not knowing that such an offence had been prevalent for a long time, the learned magistrate has not made it clear in his reasons whether such an offence was prevalent in 1997.

10. With the assistance of the Customs and Excise Department, a table titled "Prosecution Statistics between 1/1/1997 and 31-12-1999" was produced for my reference and information. For the offence of "Making False statement/representation to an I.O. contrary to section 42(1)(a) of Cap. 115" the number of persons prosecuted was 2319 while the number of persons convicted was 2268. The usual sentence was a fine of $1,000 to $3,000 and/or 1 to 4 months imprisonment suspended for 24 months. Where the offence related to forged travel documents the usual sentence was 6-12 months imprisonment. Mr. Poll submitted that had such a list been provided to the learned magistrate he would have followed the usual sentence when he decided not to follow Sit Yuk-keung (supra).

11. I look at the matter this way: the prosecution statistics from 1.1.1997 to 31.12.1999 show a total of 2319 persons prosecuted with a very high number of them being convicted (2268). During this period of time the usual sentence was a fine with or without a term of imprisonment of 1 to 4 months, but suspended (usually for 24 months). There is no break down of the number of cases each year to show whether there was an upward trend since 1997. There is also no information as to the statistics before 1997. The present offence is no doubt serious, but in my view, there is no sound basis to support the contention that such an offence was prevalent in 1997.

Effect of imprisonment upon the family

12. Mr. Poll submitted that the "bare bones" of the case did not show the tragedy. The father came to Hong Kong in 1984 and was granted permanent status in 1991. The respective application by the mother and the son to join the father was still not considered by 1995. The mother was eventually permitted to join the father, leaving the son behind to be taken care of by the maternal grandmother. As the son was born in 1978, by 1995 he was already 17 years of age. In 1996 the son was taken off the list. It was clear to the family then that the son had no chance of joining the parents in Hong Kong. Mr. Poll submitted that it was only after exhausting all legal channels and upon hearing a rumour that children under 16 would be granted permanent status to join their parents that the Appellants committed the offence. They were all simple peasants who did not realize the seriousness of the offence.

13. Mr. Poll drew my attention to the fact that the parents were living in a public housing estate. While they are all granted bail pending appeal, the son obviously cannot work due to his status. The father, who was doing a part-time decorating job, was sacked by the employer in January this year. Further, he could not work because of his medical condition. I was told that he suffered from a stomach ulcer and diabetes. Although the documents shown to me only referred to medical appointments Ms. Anthea Pang for the Respondent did not dispute his medical condition. The burden of supporting the family falls on the shoulders of the mother, who is doing a 7:30 a.m. - 10 p.m. cleaning job to make ends meet. I was told that she is suffering from rheumatism though there is no medical support of this. Mr. Poll suggested applying the totality principle, not just to each individual Appellant, but to the whole family. He submitted if they all went to jail, the parents would lose the public housing and the whole family would suffer great hardship.

14. Mr. Poll further submitted that the sentence imposed by magistrates in the magistracies should reflect the public view, particularly those at "the grass roots". He submitted 9 letters written by people representing different sectors of our society. They include a bishop, Bishop Joseph Zen; 3 legislators, Ms. Ho Sau Lan, Mr. Lee Cheuk Yan and Mr. Tsang Yok Sing; 2 District Broad/Council members, Mr. Tam Kwok Kiu and Mr. Luk Ka Ming; Mr. Ho Hei Wah of the Society for Community Organization; Ms Li Hiu Yin of the Caritas Youth and Community Service and a group of 180 "abode-seekers". They all pleaded for mercy on behalf of the Appellants.

15. Ms. Pang accepted that it would be tragic to send all 3 of the family to jail. However, she submitted that they should have thought about such consequences when they "started off" to commit the offence. They have brought such. predicament on themselves.

16. It is a fact that a substantial number of families in Hong Kong have family members in the mainland waiting to join them here. There is in place a system whereby the applicants have to wait for their turn. Hong Kong is only able to absolve these newcomers at a gradual pace. I am not blind to the fact that some people may have to wait or already have waited for a long time. This is, however, not an excuse for people to break the law. By making misrepresentations to the Immigration department, they are in fact "jumping the queue". The sense of grievance felt by those who are law-abiding and patiently waiting for their turn is not hard to understand. While I can appreciate the anguish caused by family separation and the strong desire for re-union, the court cannot be seen to condone such unlawful behaviour, otherwise a wrong message would be sent out to the general public, encouraging people to take their chances to break the law. If there is clear evidence that such an offence has become prevalent it would indeed be a strong ground to increase the sentence which has hitherto been passed by magistrates. However, in the present case, there is no evidence of such an offence being prevalent in 1997.

Seeking to correct their former misrepresentation?

17. Mr. Poll submitted that the learned magistrate did not give sufficient credit to the Appellants when they sought to correct their former misrepresentation. I must say what has occurred did not support this contention. The Appellants did not voluntarily tell the Immigration Department that there had been a misrepresentation in 1997. It is true that they did not make the same misrepresentation in 1999 and that when the Immigration Department found out about the discrepancies, they readily admitted their misdeed. Having said that, I am of the view that some credit should be given to the Appellants for not continuing the misrepresentation.

Judgment

18. I have already said that there is no evidence that the offence was prevalent in 1997. Accordingly, there does not appear to be any reason why they should not have been dealt with similarly with those who were before the court between 1997 and 1999. All the Appellants were of good character prior to this offence. They have all pleaded guilty at the earliest opportunity. They did not perpetrate the misrepresentation in 1999. I also have the additional information as to the parents' medical conditions, their financial strife since their convictions and the likelihood that they would lose their public housing if both were sent to jail. The effect of the whole family being sent to jail simultaneously does have a disastrous effect on this family. The views expressed by the writers of the 9 letters, which either come from or are representative of different sectors of our society cannot and should not, in my view, be pushed aside. After all, they are representative of certain views by certain members of our society towards the nature and circumstances of the present offence.

19. For all the reasons I have given, this is a case where I am satisfied the court can temper justice with mercy. I do not see that the sentence of 3 months passed on each Appellant being manifestly excessive as to warrant reduction of the period. However, it is proper to suspend such sentence in each Appellant's case.

20. The appeal of each Appellant is allowed to the extent that the 3 months imprisonment is suspended for a period of 24 months.