HKSAR v. XUE XIAOMING

HCMA 54/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 54 OF 2004

(ON APPEAL FROM NKCC 8963/2003)

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J U D G M E N T

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1. The Appellant had pleaded guilty to one charge of making a false representation to an immigration officer and he was sentenced to ten months' imprisonment. He now appeals against his sentence.

2. The fact of the case show that the Appellant was intercepted by immigration officers when he and another defendant in the case were deported from Japan and each was found to have in possession of PRC passports, both defendants i.e. including the Appellant, admitted that the PRC passports revealed their true identity and that in November, they had met their middleman in the Mainland who offered to arrange travel documents for them to go to Japan to look for a job. The Appellant accepted the offer and then gave the middleman his own PRC passport and photo. In December, the Appellant received his PRC passport and an air ticket for Malaysia from the middleman. Then he came to Hong Kong on the strength of his PRC passport on 19 December, he then proceeded to the Hong Kong Airport on 21 December and he checked into a flight for Malaysia. Then the Appellant presented himself for departure clearance and falsely represented to the immigration officer that he was going to Malaysia. After going through immigration, the Appellant then met the middleman in the airport transit lounge and he was then given a boarding pass for Japan under a different identity. After boarding the plane, he was given a Hong Kong passport with another person's identity. When he tried to use this passport to gain entry, he was intercepted and deported.

3. The learned Magistrate, when considering sentence, took into account the fact that the Appellant had a clear record and he also considered that the Appellant had made the false representation in order to gain access to the airport, using his own passport, intending that once inside the airport he would meet up with the middleman who would supply him with a boarding pass for Japan and a false passport and therefore, the learned Magistrate, in those circumstances, took a starting point of 15 months, they gave the usual one-third discount for plea.

4. Mr Lo, who represented the Appellant in this appeal, had submitted that the learned Magistrate was in error in adopting such a high starting point at 15 months because he was equating this offence with those of making false representation as to identity and therefore, the sentence that the learned Magistrate gave to this Appellant was manifestly excessive. Mr Lo also complained that the starting point was also equivalent to sentences for defendants who had used forged travel documents and he submitted several cases, mainly the case of HKSAR v. Cortez Emily Bisoy [2002] 2 HKLRD 762 where McMahon J whilst recognising that there were no guidelines for this type of offence because the seriousness of the offence could vary greatly, nevertheless said that:

"A misrepresentation to an immigration officer directed at obtaining the illegal entry of the offender or at maintaining his or her unlawful presence, in Hong Kong, was towards the more serious end of the scale. In such circumstances, a starting point of 12 months' imprisonment was appropriate."

5. Mr Lo refers to the case of HKSAR v. Li Xiaofeng HCMA No. 286/2003. Where the appellant in that case had made a false representation as to her identity and Jackson J allowed the appeal against sentence and reduced the sentence from the original starting point of 15 months to one of 12 months. Finally, there is also the case of HKSAR v. Zhang Changyong HCMA 1256/2003 where McMahon J for a similar offence where the fact were similar to this present case that Appellant had gained entry to Hong Kong and gone to the Hong Kong International Airport as part of scheme to gain illegal entry to America. At the airport, he presented his own passport to the immigration officer and told the officer he was travelling to Thailand. And then at the transit lounge, he met up with a middleman who provided him with a boarding pass to a flight to the United States via Korea and he was intercepted. In that case, the Magistrate took a starting point of 12 months' imprisonment.

6. McMahon J in that case recognised that telling the immigration officer a false destination may well be somewhat less serious to that of the mispresentation as to identity and then McMahon J said this:

"But against the background of the appellant making that mispresentation so as to facilitate his intent to illegally enter another country with false documentation, the starting point of sentence adopted by the magistrate cannot be criticized."

7. I respectfully adopt those words here because taking into consideration the fact that the Appellant in this case came to Hong Kong with the sole intent of going to Japan to work, knowing that the middleman was arranging for him to go there and he had no intent whatsoever to go to Malaysia, and he told the immigration officer the falsehood in order to gain entry into the airport to facilitate his illegal entry into another country with false documentation. So, against this background therefore, I would consider that the appropriate starting point in this case should indeed be similar to Zhang's case which should be 12 months' staring point and with the plea, the sentence should be reduced to 9 months.

8. In passing, I would also like to say that Mr Lo referred to the case of HKSAR v. Ko Bo Ngan HCMA 275/2002 where I had allowed the appeal in that case and one of the charges in that case was similar to the present charge, I had considered that a sentence of 3 months' imprisonment was appropriate. That was indeed wrong in view of the latter cases and I had made that decision without considering fully matters that had been raised in the latter cases.

9. I would also like to say that since that case, there has been an increase in this type of offences particularly because of the ease Mainland citizens have in getting PRC passports and therefore they are starting to use Hong Kong as a transit area to go to countries to find work in which they are not welcome and therefore, we have to be more concerned about the growth of this type of crime and the sentences have to reflect this concern. Therefore, I consider that in these circumstances, the 12 months starting point for this type of case is appropriate. The appeal is allowed, the sentence in one of 8 months' imprisonment, so the original sentence imposed by the learned Magistrate is quashed.