HKSAR v. ZOU, YUEMEI

HCMA789/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.789 OF 2006

(ON APPEAL FROM STCC 6622 OF 2006)

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J U D G M E N T

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1. The appellant was charged with two charges of “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. She pleaded guilty to both charges before a principal magistrate.  The principle magistrate sentenced the appellant to 6 months’ imprisonment on the 1^st charge and 8 months’ imprisonment on the 2^nd charge, both sentences to run concurrently, making a total of 8 months.  

3. The appellant now appeals against the sentence.

Admitted facts

4. The appellant was born on 10 May 1979 and her name is Zou Yuemei (鄒岳梅).  In 2002, she used the identity card of her elder sister with her own photograph inserted to apply for a travel document to Hong Kong.  She was given a Chinese permit in the name of Zou Yuemei (鄒岳美), born on 14 May 1977, to gain entry to Hong Kong on 18 October 2002.  That formed the subject matter of the 1^st charge.

5. On 14 June 2003, the appellant used the same permit to arrive in Hong Kong.  That formed the subject matter of the 2^nd charge.

Magistrate’s approach

6. The learned principal magistrate’s dealing with the appellant was different from the usual, so it would be appropriate to mention his approach.  The permanent magistrate considered a starting point of 18 months’ imprisonment was justified but he took into consideration the fact that the 1^st charge was committed before the delivery of the judgment of HKSAR v. Yim Lee Kuen, HCMA1187/2002 in February 2003.  So, for that charge, the learned magistrate adopted a starting point of 9 months’ imprisonment and reduced it to 6 months on the appellant’s plea. 

7. For the 2^nd charge, the learned magistrate noted that upon entry to Hong Kong, the appellant committed the offences of “soliciting for an immoral purpose” and “breach of conditions of stay” and received a total sentence of 4 months’ imprisonment, suspended for three years.  Those sentences were activated in 2006.  

8. Being really fair to the appellant, the learned magistrate considered that if the Immigration Authority had known the appellant’s true identity when she entered Hong Kong on 14 June 2003, the appellant would probably have been charged with an offence of “making false representation to the immigration officer” and not the charges that were actually laid, namely, “soliciting for an immoral purpose” and “breach of conditions of stay” because she would simply not be allowed to enter Hong Kong.

9. The learned magistrate therefore gave credit for the 4 months’ imprisonment and reduced it from the 12 months’ imprisonment that he intended to impose on the 2^nd charge.  That is why for the 2^nd charge the learned principal magistrate imposed a sentence of 8 months’ imprisonment.

Grounds of appeal

10. The appellant does not really argue that the sentences imposed were either wrong in principle or excessive.  She adduced what she considered special reasons so that she should be allowed to go home early.  She said since she had come to Hong Kong and had been sent to jail her mother had been diagnosed with stomach cancer.  Her mother received chemotherapy in a hospital and has lost a lot of weight and lots of her hair as a result.  The appellant learnt that from a friend who lived at her hometown and who had been visiting her mother.  The appellant also told me, by way of a letter she wrote herself, that her father had injured himself and was not able to see very well.  Her brother also suffered from some sort of eye illness which caused his eyes to bulge. 

11. Basically, the appellant is saying that neither her father nor her brother is able to look after her mother.  She wants to go home early to look after her mother.  She also said that she was sorry for what she had done and asked the court to allow the appeal. 

Judgment

12. It is clear that the learned magistrate had already been extremely fair and lenient in the case of this appellant.  There is nothing wrong with the sentences imposed.  While the court appreciates the difficulties the appellant faces : with a mother being diagnosed with stomach cancer, the circumstances are not such that amount to special reasons for the court to depart from an otherwise proper sentence. 

13. According to the appellant, her mother is actually receiving treatment in a hospital.  The allegation that her father or her brother is not able to look after her mother is really neither here nor there.  For these reasons, the appeal is dismissed.