HKSAR v. LEE SHUNG KIN

HCMA 1021/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1021 OF 1999

(ON APPEAL FROM WSCC 12879/1999)

____________

_______________

J U D G M E N T

_______________

1. The Appellant pleaded guilty to one charge of Causing a False Representation to be Made to an Immigration Officer contrary to Section 42(1)(a) of the Immigration Ordinance, Cap. 115 and he was sentenced to six months' imprisonment by the Magistrate. He now appeals against that sentence.

2. The circumstances of the offence were that this Appellant provided supporting documents in order to facilitate the processing of a domestic helper's contract. It was not intended that the domestic helper would work for him nor that he would pay her. It appeared that he was part of a scheme whereby a bogus employment agency arranged supporting documents for domestic helpers.

3. In mitigation, the Magistrate was advised that the Appellant was 25 years old, married and had a clear record. It was also pointed out to the Magistrate that the person who was arranging the bogus employment contract was a friend of his wife's and it was suggested that the Appellant acted out of embarrassment in acting as he did. He felt embarrassed because he had been asked numerous times to comply with this dishonest behaviour and had failed to do so. It was submitted that although $500.00 was made available to him as payment he did not intend to seek that payment and was not in fact paid.

4. At the hearing, the Magistrate recognised that this was a bogus transaction which enabled people to stay in Hong Kong completely legally for an indefinite length of time. He considered that the usual sentence after trial was one of nine months' imprisonment, but after giving credit for the guilty plea and the clear record, he passed a sentence of 6 months' imprisonment.

5. Two authorities relating to similar cases are HKSAR v. Saranilla HCMA 944 of 1997 a decision of Yeung J and HKSAR v. Mijares Marriza G HCMA 1061 of 1997 a decision of Gall J. In both cases, the person charged and convicted was the domestic helper who presented the bogus documentation.

6. The Magistrate considered this case to be more serious than the case of Saranilla; it does not appear that the case of Mijares was referred to him. In both of those cases, on appeal, the sentence was reduced to 4 months' imprisonment. In the Mijares case, it was suggested that there was a distinction to be drawn between offences involving forged travel documents which touched upon the comity of nations and those cases involving forged letters of support for domestic employees.

7. I confess that I cannot see why this distinction should be made at all. This was an organised fraud perpetrated on the Hong Kong SAR Government, whereby persons for payment, or for other reasons, supplied false documentation enabling people who were not otherwise entitled to live here, or work here, to do so and to do so completely legally and in a manner that made it very difficult, in most cases, for the authorities to uncover the deception.

8. Having considered all those matters, I am not convinced that the Magistrate was wrong in adopting the starting point for sentence that he did. This is a serious offence and there should be an element of general deterrence in sentences passed.

9. Accordingly, I dismiss this appeal.