HKSAR v. LI SHENG

HCMA 1019/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1019 OF 2005

(ON APPEAL FROM STCC NO. 11738 OF 2005)

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J U D G M E N T

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1.  The Appellant in this case was originally charged with 3 charges but he pleaded guilty to 2 charges, that is, possession of a false travel document and using a false travel document under the Immigration Ordinance.

2.  The learned Magistrate had sentenced him to originally 8 months’ sentence on each and upon a review sentenced him to a concurrent term of 7 months’ imprisonment.

3.  The Appellant now appeals against both conviction and sentence.  The counsel representing the Appellant, Mr Wong, contends very “bravely” that the false date of birth in the travel document is not a material particular and therefore did not render the travel document false because the falsity did not render the said permit to be a lie in its own right.

4.  I must admit I had trouble following his argument but after considerable questioning from the bench, the argument of Mr Wong can be diluted down to very simply this, that he is contending that the falsity as to age which appears on the travel document is not a material particular and therefore it cannot be said that he was in possession of a false travel document or even using a false travel document because that falsity does not make the travel document false.  He has no support for his argument apart from the fact that he refers to the Interpretation Ordinance where a travel document is defined and he claims that because the definition does not mention age therefore age is not a material particular and therefore it cannot be “false” under the Immigration Ordinance.

5.  As Ms Cheng very succinctly submitted a travel document is to establish the identity of the holder and anything in that travel document that goes to establish the holder’s identity is a material particular and his date of birth is one of those particulars that is material going to establish his identity apart from photograph and place of domicile, etc., basically, that it narrows down the identity of a particular person who may come from the same region as another person with the same name.  So, I see no merit in the ground of appeal and that appeal against conviction is therefore dismissed.

6.  Now Mr Wong next appeals against the sentence.  Mr Wong’s appeal is very simply, that, the 7 months’ imprisonment imposed on the Appellant cannot be said to be manifestly excessive, but he is saying that it is too severe in the circumstances because he said that the Defendant did not set out to deceive the Immigration Department because he merely pulled this travel document out by mistake.  He did not enter Hong Kong using this false travel document and therefore this case can be distinguished from the other cases for the same type of offence where the holder of the travel document actually used it to deceive and intended to deceive the Immigration personnel.

7.  Well, the learned Magistrate in his Reasons for Sentence was well aware of the facts of this case.  He was well aware that the Defendant had entered Hong Kong using his genuine travel document and that as disclosed in the brief facts he had in a moment of carelessness pulled out the travel document containing the false particular to the Immigration Officer.

8.  The learned Magistrate also very carefully had considered the various relevant cases for this type of offence and at the end of the day, the learned Magistrate’s Statement of Findings and Reasons for Sentence said that he considered that there was nothing unusual or exceptional in the background of the Defendant to warrant a reduction of sentence.  There is no evidence, to say that the Defendant had entered Hong Kong illegally and this is a mitigating factor which helped the Defendant.

9.  So the learned Magistrate after considering all the relevant cases, in fact, adopted a very low starting points for this type of offences and then reduced them further because of the plea and sentenced the Defendant to 7 months’ imprisonment on each charge after review.  Mr Wong tried to persuade this court to suspend the sentence.  I can find no exceptional circumstances in this case to warrant this court to use its discretion in this way.

10.  This type of offence is serious and possession of a false travel document is also very serious, whether at the time when he was arrested, the Defendant had intended to use it or not, so I am not persuaded that I should interfere with this sentence as imposed by the learned Magistrate and therefore the appeal against sentence is also dismissed.