HKSAR v. VASQUEZ TARAZONA JESUS JUAN

HCMA 725/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 725 OF 2001

(ON APPEAL FROM WSCC 7628/2001)

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J U D G M E N T

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1. This Appellant is a Chilean man in his early fifties. On 9 July 2001 he pleaded guilty before Michael Jenkins Esq in the Magistrate's Court at Western to one charge of conspiracy to make false instruments and one charge of obstructing a police officer in the due execution of his duty. The conspiracy was committed on an unknown date in November 2000. The false instruments which the Appellant conspired with another man to make were a Spanish passport, a Spanish identity card and a Spanish driving licence. The Brief Facts of Case admitted by the Appellant in the Magistrate's Court state that "his purpose of getting these documents was travel convenience". The obstruction occurred on 21 June 2001 in Stanley Prison where the Appellant was being detained. According to the Brief Facts of Case admitted by the Appellant, he refused to be fingerprinted by a police officer who was attempting to take his fingerprints, maintaining his refusal and walking away even after the officer had explained that his fingerprints were required and that he would be charged with obstruction if he refused.

2. For the conspiracy the Magistrate took a starting point of 18 months' imprisonment and discounted that to 12 months' imprisonment to reflect the Appellant's co-operation with the police in their investigation of the conspiracy offence and his guilty plea on the conspiracy charge.

3. As to the obstruction the Magistrate said that normally a sentence of three months' imprisonment would be imposed for such an offence but that, since he made it consecutive to the 12 months' imprisonment for conspiracy, he reduced it to one month's imprisonment on the totality ground.

4. That meant a total sentence of 13 months' imprisonment. The Magistrate said that strictly speaking that total sentence should have been consecutive to the sentence which the Appellant was serving at the time, but that he made it concurrent instead since that other sentence was nearing its end.

5. The Magistrate noted that the Appellant was HIV positive, but took the view that this did not warrant a reduction in sentence, remarking that the executive could intervene if it saw fit in the event of the Appellant's condition deteriorating.

6. The Appellant now appeals to this Court against his sentence. His Notice of Appeal in Form 102 contains no ground of appeal against sentence beyond the pro forma ground printed on the form that the sentence was "too severe".

7. Although he is a foreigner, the Appellant informed me that he did not suggest that he ought to receive a lesser sentence by reason of his "foreignness". As it happens, I will later this morning be delivering judgment in another case in which I will deal with the question of a person receiving a lesser sentence by reason of his being a foreigner. Suffice it to say in the present case that I am satisfied that the Appellant's decision not to rely on his "foreignness" is well-founded.

8. Essentially the Appellant does two things. One is to suggest that there are cases in which persons who did what he had done had been dealt with more leniently than he has been dealt with. He did not cite any specific instance. Ultimately every case depends on its own facts, and I am satisfied on the facts of the present case that the Appellant has not been sentenced at a level above the appropriate range.

9. The other thing which the Appellant did was in effect to ask for mercy, pointing to his unfortunate medical condition, his own difficult circumstances and the difficult circumstances of his family. All of these things naturally attract human sympathy, but the Magistrate's duties include a duty to deal reasonably firmly with crime. In all the circumstances I do not feel able to say that he has dealt with this Appellant too severely.

10. Accordingly, the appeal is dismissed.