THE QUEEN v. LIEN SHIN KUANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1587 OF 1989

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BETWEEN

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JUDGMENT

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1. The appellant was found guilty after trial on a charge of using an unlawfully obtained travel document. He was sentenced to 12 months' imprisonment and now appeals against that sentence. He pleaded guilty to a further charge of making a false statement to an Immigration Officer and was sentenced to 4 months' imprisonment concurrent with the 12 months imprisonment imposed on the first charge. He does not appeal against that sentence.

2. The brief facts were that the appellant entered Hong Kong from Taiwan in transit to Macau. He was using a Philippine passport which showed the Philippines as his place of birth.  He was also found to be carrying a Taiwanese passport with Taiwan entered as his place of birth.  He admitted in a cautioned statement that his place of birth was Taiwan.  He gave details in that document of having gone in 1984 to see his father who resides in the Philippines and at that time his father arranged through a lawyer for an application to be lodged for a Philipine passport. The appellant stated that he noticed in that application that the Philipines was shown as his place of birth and that he queried this with the lawyer. He was told that the application was in order provided the name and date of birth were consistent.

3. It is not in issue that in all other respects the Philippine passport correctly records the appellant's personal details. In his evidence before the Magistrate the appellant claimed that his mother had told him that he had been born in Taiwan whilst his father had told him that he had been. born in the Philippines, so that he was not sure the true position. This was something he had not made reference to in his cautioned statement.

4. The Magistrate rejected this explanation and found that the appellant knew full well that the passport had been obtained through an application which gave false imformation as to his place of birth. The Magistrate did not accept the explanation that the appellant had been misled by the lawyer. The Magistrate then accepted that the appellant is a Taiwanese businessman who had no intention of permanently residing in Hong Kong. The appellant had used the Philippine passport on previous occasions to gain access to Hong Kong and it was clear that he had done so in order to avoid the bureaucratic delays which are involved in visa applications.

5. This is, of course, not a mitigating factor (see R v. Wang Ju Wen, 1988, No.272.) There was, however, no attempt to conceal his real name and no suggestion that he would not have got a visa through his legitimate Taiwanese passport had he applied for one. The Magistrate referred to several decisions in respect of the similar offences and fixed the sentence at 12 months' imprisonment. It is true that the authorities do not show a consistent pattern but this is no doubt due to the need to consider each case on its own merits.

6. The Magistrate in his reasons for sentence very fairly stated that after having imposed the sentence of 12 months' imprisonment, he had considered calling for a review as he felt that he had not given sufficient consideration to the fact that there had been no attempt by the appellant to conceal his true identity. I agree that this was a factor which he could properly have taken into account in placing this particular offence into the less serious category. The appellant cannot, of course, claimed as a mitigating factor a plea of guilty but nevertheless, in all of the circumstances, I think the facts do justify a reduction from the sentence imposed. The appeal is therefore allowed to the extent that 9 months' imprisonment is substituted for the 12 months' imprisonment imposed by the Magistrate.