HKSAR v. ABDUL MATIN

HCMA 220/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 220 OF 1999

(On appeal from SPCC 377 of 1999)

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J U D G M E N T

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1. The Appellant was convicted on his own plea of an offence of breaching a condition of his stay in Hong Kong contrary to s. 41 of the Immigration Ordinance, Cap. 115 (being the 1st charged offence) and 2 offences of making a false representation to an Immigration Assistant contrary to s. 42(1)(a) of the same Ordinance (being the 2nd and 3rd charged offences).

2. In respect of the 1st charged offence the magistrate imposed a sentence of 2 months imprisonment. In respect of the 2nd and 3rd charged offences sentences of 6 months imprisonment were imposed on each. These sentences were ordered to be served concurrently so as to arrive at a totality of sentence of 6 months imprisonment.

3. Additionally the Appellant had previously been convicted and sentenced on the 16 September 1996 in respect of an offence of breaching a condition of his stay in Hong Kong and of an offence of making a false statement to an Immigration Officer.

4. He had been sentenced in respect of the former offence to a sentence of 4 months imprisonment suspended for 2 years and in respect of the latter offence to a sentence of 2 months imprisonment suspended also for 2 years. That suspended sentence was activated as to 2 months by the learned magistrate in this case arriving at a totality of 8 months imprisonment. Against these sentences the Appellant appeals.

5. The Appellant had been prosecuted in respect of those offences dealt with on the 16 September 1996 under the name of Hafizur Rahman.

6. That is the name which appeared on a false passport he possessed at the time. He admitted, when questioned by Immigration Officers in regard to the proceedings the subject of this appeal, that that was so. His admissions in that regard founded the present 2nd and 3rd charges.

7. He admitted that he had arrived in Hong Kong bearing a false passport in the name of Hafizur Rahman on the 5 September 1994 and presented it to the Hong Kong Immigration Department representing its details as his own personal particulars and subsequently on the 11 January 1995, he had approached the Hong Kong Immigration Department and again produced the false passport again representing it to contain his personal particulars in the course of seeking an extension of his stay in Hong Kong under the name of Hafizur Rahman.

8. So far as the sentence imposed in respect of the 1st charged offence is concerned, the Appellant had overstayed in Hong Kong for 1 year and 6 months. This is a significant and ongoing breach of an important condition of stay.

9. It is important that such conditions imposed on visitors to Hong Kong be honoured and that breaches of this significance attract a deterrent penalty. The maximum sentence, upon summary conviction, is 2 years imprisonment. The sentence of 2 months was entirely unexceptional and if anything extremely lenient. There is no merit in the Appellant's assertion that it was too severe.

10. So far as the sentences imposed in respect of the 2nd and 3rd charged offences are concerned, the learned magistrate took into account that the misrepresentation involved the production of a false passport. In my view he was entitled to do so. He arrived at the conclusion that a sentence should be imposed comparative to sentences imposed for possession of false travel documents.

11. I do not think that comparison with sentences imposed in respect of a different offence would necessarily be of assistance in all cases, but the conclusion that the learned magistrate arrived at, from that comparison in the circumstances of this case, that a starting point of 9 months imprisonment after trial was appropriate, cannot be criticised.

12. The misrepresentation of the identity of an individual arriving in Hong Kong to an Immigration Official is a most serious misrepresentation. It will almost always be a misrepresentation supported by falsified documentation such as an altered or fabricated passport.

13. The magistrate's reduction of sentences imposed upon the Appellant on the basis of the Appellant's plea of guilty cannot be complained of. His activation of the prior suspended sentence was also entirely proper and necessary. The Appellant's appeal against the sentences imposed on him must fail.

14. Accordingly his appeal against these sentences is dismissed.