HKSAR v. XU WUPENG

HCMA492/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.492 OF 2006

(ON APPEAL FROM STCC 4368 OF 2006)

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J U D G M E N T

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1. The appellant was convicted on his own plea of the charge of making a false representation to an immigration officer and he was sentenced to eight months’ imprisonment, a starting point of 12 months having been adopted by the magistrate.

2. The facts of the case show quite clearly that the basis of the charge was that on one occasion on 2 September 1994, the appellant entered Hong Kong with a Chinese Permit which had a false date of birth in it.  Unfortunately, when the magistrate recited the facts in his Reasons for Sentence, he said that the appellant had entered Hong Kong in 1994 on many occasions with a Chinese Permit bearing a false date of birth.  Then in the following paragraph, the magistrate repeated what was alleged against the appellant on the day of the charge namely 2 September 1994.

3. The magistrate quoted two cases HKSAR v. Yim Lee Kuen, HCMA1187/2002 and HKSAR v. Lin Pei Luan, HCMA373/2003 and came to the conclusion that for this offence the usual sentence was one of 18 months.   Even if that were so, these cases were decided in the year 2003.

4. Mr Chan for the appellant submits that because the offence was committed in 1994, the appellant should have been sentenced in accordance with the prevailing sentencing practice in 1994.  This is not seriously disputed by Ms Ho for the respondent.  In any case, in my view the submission by Mr Chan is quite clearly correct.  

5. The best reference point of what the sentencing practice was in 1994 would appear to be the case of R. v. Gurung Mohan, HCMA195/1996 where Stuart-Moore J, then sitting as a judge of the High Court, having reviewed the cases of R. v. Biagtan Danilo, HCMA1241/1995, R. v. Sahadev Thapa, HCMA1242/1995 and the case of R. v. Ikbal Hossain, HCMA1245/1995, came to the conclusion “Subsequent cases indicate that the tariff in recent times seems to be in the range of six to nine months”.  Looking at the judgments of the three cases, the actual sentences imposed in those three cases were, in the first two cases six months and in the last case nine  months.  So what Stuart-Moore J said in that case was a reference to the actual sentence and not to the starting point. 

6. However, in Yim Lee Kuen’s case (supra) McMahon DJ (as he then was) reviewed a number of cases where the judgments were given in 2002.  Those cases that he reviewed were HKSAR v. Fung Lai Wan (unreported), 31 July 2002, HCMA527/2002, HKSAR v. Yang Wai (unreported), HCMA791/2002, HKSAR v. Kwok Lai Kwan (unreported), HCMA897/2002.                     Having reviewed those cases McMahon DJ said this :

“In respect of the sentences imposed for the 2^nd and 3^rd charged offences (making false representation to an immigration officer), Mr Lo for the appellant relies on a number of cases which have approved starting points of sentence for factually identical charged offences of between six to nine months’ imprisonment. …”  

7. However, these were cases decided in 2002, so I really ought to look at the cases decided closer to 1994 in trying to determine what the sentencing practice was in those years. 

8. In R. v. Wong Sze Tak, HCMA888/1995 Duffy J reduced the sentence on making a false representation from 16 months to 4 months.  In HCMA944/1997, HKSAR v. Saranilla Corazon, Yeung J in October 1997 reduced the sentence on the false representation charge from 6 months to 4 months.  

9. In a subsequent case in 1998, HKSAR v. Mijares Marriza G., HCMA1061/1997, Gall J reduced the sentence on making a false representation from 6 months to one of 4 months. 

10. This offence committed by this appellant is an old offence having taken place in 1994.  He committed this offence on just one occasion.  I will allow the appeal and substitute the sentence of eight months’ imprisonment imposed by the magistrate to one of four months.