HKSAR v. WU ERZI

HCMA 766/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 766 OF 2003

(ON APPEAL FROM KCCC 10732/2003)

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J U D G M E N T

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1. This Appellant pleaded guilty in the Magistracy to Making a False Representation to an Immigration Officer contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115 and Possessing a Forged Travel Document, contrary to section 42(2)(c)(i) of the Immigration Ordinance, Cap. 115. He was off-loaded from a Cathay Pacific flight when the airline staff started checking his ticket and documents and reported their suspicions to the Immigration authorities.

2. Investigation revealed that the Appellant was a Mainland resident who had come to Hong Kong using his own PRC passport. He had purchased, for RMB200,000, a false PRC passport. He managed to clear Hong Kong Immigration and was waiting for a flight to Thailand. While waiting in the departure lounge, he was given a boarding pass in somebody else's name, together with a permanent resident card, in the same name, for the USA. The Appellant knew that the passport contained false particulars, although the passport photograph did resemble him.

3. Various matters were put before the Magistrate in mitigation. He was told that the Appellant was 27 and married with a 3 year-old son. He was motivated by financial difficulties as he needed money for his mother's diabetic treatment. He also incurred a debt of RMB100,000 because he had borrowed the RMB200,000 and had paid half of it to the middleman.

4. The Magistrate took into account two authorities, HKSAR v Yim Lee Kuen, HCMA 1187/2002 and HKSAR v Singh Parkas, HCMA 1237/99 and adopted a starting point of 18 months imprisonment for each offence. He gave the Appellant the full discount for plea; the only valid mitigating factor before him was the plea of guilty. He sentenced Appellant to 8 months' imprisonment on the first count and 12 months' imprisonment on the second: the sentences were to run concurrently.

5. The Magistrate commented in his Reasons for Sentence that there was no ground for distinguishing between the two charges and each should have been for 12 months. I agree with that comment. There is no merit in this appeal. The Magistrate took all matters into account. Although the Appellant put before this court further details of his family, there is no justification for reducing his sentence.

6. I amend the sentence on the first charge to one of 12 months which should have been the proper sentence; the second sentence remains the same at 12 months. Both sentences are to run concurrently. The appeal is dismissed.