HKSAR v. CHU YING KAU

HCMA649/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.649 OF 2000

(ON APPEAL FROM WSCC 6968 OF 2000)

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J U D G M E N T

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1. The appellant pleaded guilty to two charges before Mr K.A. Browne in Western Magistracy. The first charge was one of making a false statement for the purpose of obtaining an entry permit, in that he had stated that a boy was his son, but in fact he was not. The second charge was a similar charge which was when, after the boy had arrived in Hong Kong from China and when he applied for a re-entry permit, the appellant again asserted to the Immigration authorities that the boy was his son, but in fact he was not.

2. The boy in question was in fact the son of the brother of the appellant's wife who was the 2nd defendant in the case. She had married the appellant who was a Hong Kong resident and, after the marriage, she had come to Hong Kong to live. As a result of the false representations, the boy was allowed to come to Hong Kong to live, and he did live in Hong Kong until some time after 19 November 1999 on which day the appellant went to the Immigration Department and confessed to his having committed the two offences. As a result of that confession, the matter came to light and the boy has now been repatriated back to China. The appellant now seeks to appeal against his sentence of six months' imprisonment for each charge, to be served concurrently, imposed by the magistrate.

3. Mr Marray, appearing for the appellant, has argued that inasmuch as the sentence imposed on the 2nd defendant was the same, it would appear that the magistrate did not take into account the fact that the appellant had confessed to the Immigration authorities and the fact that if it had not been for his confession, the whole matter would not have been discovered.

4. The magistrate in his Reasons for Sentence did not expressly refer to the fact that he was giving the appellant any discounts for his going along to the Immigration Department to reveal the offences, save to say this :-

" I took into account what was said by each party and all the circumstances of the offence including the behaviour of D1 in bringing the matter to the attention of the Immigration Department."

5. The magistrate did not make any finding of facts as regards whether it was the appellant's idea or his wife's to bring the boy to Hong Kong illegally. From the facts of the case, it would appear that the appellant had been involved to a greater extent than his wife, the 2nd defendant, but it would also appear that he had committed the offences at the request of his wife who was the spouse related to the boy.

6. I take the view that even though the offences committed by the appellant are serious, inasmuch as false representations were made to the Immigration Department, which resulted in a person who was not entitled to come to Hong Kong being allowed to come to Hong Kong to live as a resident, I also take the view that the whole thing would have gone on without anyone detecting it if it was not for the appellant of his own volition going to the Immigration Department and confessing to these offences. Whether there is a motive or motives in his so doing, I am not really concerned with. I am told that at the time he went to the Immigration Department, his relationship with his wife was extremely bad and that they had in fact separated. The result of all this is that the appellant's wife is now still in prison serving six months' imprisonment, their two sons, who are still quite young, are being looked after by a former co-tenant of the wife. It is the appellant's wish to seek the custody of the boys when a divorce petition is eventually filed. While he has been in prison, his parents have made contact with the boys and have succeeded in contacting them.

7. For all these reasons, I will allow the appeal to the extent that the sentence of six months' imprisonment on each charge is reduced to four months on each charge, to be served concurrently.