HKSAR v. LUO SHUISHENG

HCMA 327/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 327 OF 2007

(ON APPEAL FROM STCC 1978/2007)

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J U D G M E N T

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1.    The Appellant had pleaded guilty to 2 charges of making a false representation to an Immigration Assistant and 1 charge of breach of condition of stay.  He was sentenced to 12 months’ imprisonment on Charges 1 and 2, and 6 weeks’ imprisonment on Charge 3.  After considering the totality principle, the learned Magistrate made part of those concurrent and consecutive, thus making up a total sentence of 15 months and 6 weeks.  The Appellant now appeals against his sentence.

2.    The summary of facts show that the Appellant was arrested while working in a construction site in Tai Po.  He had entered Hong Kong on a 2-way Chinese permit which prohibited him from taking up employment in Hong Kong.

3.    Under caution, the Appellant said he used his brother’s identity to obtain a 2-way permit to come to Hong Kong on 1 June 2004 and on 8 November 2006.  When he came on 8 November, he had been denied entry.

4.    The learned magistrate, after considering the background of the Appellant, had also considered the sentencing guidelines in cases which has emanated from the Court of First Instance, particularly the case of HKSAR v Yim Lee Kuen, HCMA 1187/2002.  Deputy Judge McMahon (as he then was) said that the sentences imposed for someone coming into Hong Kong on a false 2-way re-entry permit should be comparable to sentences imposed in respect of other offences involving the gaining of entry into Hong Kong with false travel documents. 

5.    A sentence, depending on the circumstances of the case, with a starting point of 18 months’ imprisonment would be justified.  The learned magistrate, therefore, imposed 18 months’ imprisonment for Charges 1 and 2 and discounted that by 1/3 because for the Appellant’s plea, and sentenced the Appellant to 12 months on those two charges.  On the third charge, he imposed a starting point of 9 weeks and reduced it to 6 weeks because of the guilty plea, he then ordered that 6 weeks to run consecutively to Charges 1 and 2 which he had made concurrent.

6.    The Appellant appeals on the basis that the sentence was too severe and he also asks that the court be lenient because of his family background.  For this type of offences, the family background of the Appellant does not hold much weight, and deterrent sentences are called for.  The Appellant knew full well what his family circumstances were before he came to Hong Kong on the 2-way permit of his older brother.

7.    I therefore concur with the learned magistrate in this case that the proper sentence should be 18 months’ imprisonment on the first 2 charges, which were reduced to 12 months, and that the sentence on the third charge is also correct.  So the appeal is dismissed.