HKSAR v.LO SIU CHING

HCMA 1131/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1131 OF 2001

(ON APPEAL FROM TMCC 2652/2001)

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J U D G M E N T

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1. The Appellant was convicted on her own plea, of 2 charges, the first being Possession of a False Travel Document, contrary to sections 42(2)(c)(i) and 42(4) of the Immigration Ordinance, Cap.115. The second offence was Remaining in Hong Kong without the Authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115, Laws of Hong Kong.

2. On the 1st charge she was sentenced to 8 months imprisonment and on the 2nd charge to 15 months imprisonment and the sentences were ordered to be consecutive.

3. The facts were that the Appellant was stopped in the street by a police officer and asked for proof of identity. She produced a two-way permit in her name claiming that she was the holder of it. The police officer suspected the permit was forged and arrested the Appellant. Under caution the Appellant said someone had made the permit for her, but she did not know it was forged. The permit was confirmed as a forgery by the Government Chemist.

4. At a subsequent interview, the Appellant admitted that in late June 2001 she had sneaked into Hong Kong by speedboat from the Mainland and landed at Shatin. The snakehead took her to Yuen Long and in early July she was given the forged permit. The snakehead arranged for her to provide sexual services in various villas and apartments in Yuen Long. The Appellant had no previous convictions and had no previous instances of being in Hong Kong illegally.

5. In considering sentence, the Magistrate took a starting point of 12 months imprisonment on the 1st charge, gave the Appellant a full one- third discount and sentenced her to 8 months imprisonment. On the 2nd offence he followed R v So Man King [1989] 1 HKLR 142 and sentenced her to 15 months imprisonment.

6. He stated in his Reasons for Sentence that there was "ample authority" from the Court of Appeal that sentences for the offences of illegally remaining should run consecutively to those for other offences and ordered the sentence on Charge 2, to run consecutively to the sentence on Charge 1.

7. The basis of the appeal is that the Appellant had not used the false travel document to obtain some particular benefit and the Magistrate ought to have imposed concurrent sentences. The Appellant challenged the existence of ample authority that such sentences should run consecutively, pointing to various authorities where the Court of Appeal dealing with similar offences considered concurrent sentences were correct in circumstances similar to those described in these facts. In So Man King, it was acknowledged that there may be circumstances in which the use of the ID card will be an aggravating feature, but in the view of the court on that occasion the authorities drew little, if any, distinction in ordinary cases. The substantial element affecting sentencing for all three offences, unlawful remaining, unlawful possession and unlawful use of identity cards, is the unlawful presence in Hong Kong.

8. A court was enjoined to take into account by upward adjustment of the sentence after plea, previous unlawful entries, whether or not they resulted in prosecution. Other circumstances which may aggravate the offences were stated as being the actual use of a forged, or another person's, identity card to obtain some particular benefit. The case of AG v Lam Ping Chun [1989] 1 HKLR 161 affirmed So Man King and in the case of R v Chan Wun Sang[1993] 1 HKCLR 46, Cons Ag. CJ explained what the court meant by "aggravated circumstances".

9. Counsel for the Appellant submitted that circumstances which may aggravate the offence and justify consecutive sentences were the actual use of a forged, or another person's, identity card to obtain benefits such as work, or the opening of a bank account.

10. In R v Yee Yick Hong, Magistracy Appeal No.351 of 1996, Leong J, as he then was, referred to 2 cases, R v Chan Chun MA 693/94 and R v Chan Wun Sang and Anor 1992 HKLR 46. In both cases the sentences for possession of a forged identity card and for illegally remaining, were concurrent. Leong J considered the authorities showed that the usual sentences for these offences would be 15 months in total, except where there are special circumstances, and the sentences would normally be concurrent.

11. Here the Magistrate treated the possession of the forged two-way permit as being a less serious offence than possession of a forged, or another person's, identity card. There was no evidence that any additional use had been made of the forged two-way permit, other than to facilitate the illegal remaining.

12. Having considered the cases and the circumstances of this offence, I consider that the 2 sentences should have been concurrent. The Magistrate did not say what the ample authority was on which he was relying, but it appears from the general run of cases that the sentences should be concurrent.

13. The appeal is allowed to the extent of ordering the sentences to run concurrently, which will make a total of 15 months imprisonment.