HKSAR v. WANG WU

HCMA 801/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 801 OF 2003

(ON APPEAL FROM KTCC 4542/2003)

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J U D G M E N T

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1. This Appellant pleaded guilty to Making a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115.

2. The Appellant was intercepted by airline staff as he attempted to board a flight for Taipei. At the time he produced a BNO passport in the name of Wan Siu Yau. Enquiry was made because the Appellant did not resemble the photograph. At that point, he took out his PRC passport and said that the BNO passport did not belong to him. Further investigation showed that the Appellant had arranged to go to Canada to look for a job and paid a middleman RMB310,000.00. He arrived in Hong Kong from China using his own passport; he was given the BNO passport and boarding passes for flights to Taipei and Canada. He noted that the personal particulars on the BNO passport were not his. He pretended to depart from Hong Kong to Thailand and falsely represented that his destination was Thailand. Once through Immigration, he switched to board the Taipei flight.

3. He was sentenced to 8 months' imprisonment for this offence and complains the sentence is too severe. He is anxious to return home because his father is seriously ill and medical expenses are mounting. He has a brother in Mainland China, but the brother has his own family to look after. The Appellant claims he was cheated because he was told his action in going to another country would not offend any law. As his grandmother was very old and she and his mother were very concerned about his father's state of health, he asked the court to allow him to go back to China as early as possible.

4. All these matters were before the Magistrate who noted the Appellant was aged 19 years and was told his domestic circumstances. In considering sentence, the Magistrate examined what appeared to him to be diverging views as to the proper approach to sentence for the present defence. He followed HKSAR v. Lin Xiao Feng HCMA 286/2003 in which Jackson J concluded that a sentence of 12 months after trial was the appropriate sentence for this offence. He took that as a starting point and reduced it by a third, to take account of the only mitigating factor which was the plea of guilty.

5. There was nothing excessive about the length of the sentence nor is it wrong in principle. The appeal against sentence must be dismissed.