HKSAR v. PENG ZHONGLIANG

HCMA1006/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1006 OF 2006

(ON APPEAL FROM STCC 9162 OF 2006)

----------------------------

------------------------

-----------------------

J U D G M E N T

-----------------------

1. This is an appeal against the sentence of 11 months’ imprisonment, imposed on the appellant by Mr T.S. Jenkins on 15^th September 2006 following her plea of guilty to the offence 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. The appellant is a resident of the mainland.  Insofar as her current stay in Hong Kong is concerned, she entered on the strength of a mainland two-way permit in her real name on 31^st July 2006. 

3. Shortly after her arrival on this occasion, she committed the offences of soliciting for an immoral purpose and breach of the conditions of her stay, and was sentenced to terms of imprisonment totalling 3 months. 

4. After she had been apprehended for these two offences, it was discovered that she previously entered under a different identity in November 2004.  It is the circumstances of that entry on 9^th November 2004 that forms a subject matter of the offence for which she was sentenced to 11 months’ imprisonment and against which sentence she now appeals.

5. When she entered on 9^th November 2004, she presented to the Immigration Assistant a two-way permit bearing her photograph, but issued in the name of Liao Xiao Ming.  She claims that that was the name of her friend. 

6. Following this earlier unlawful entry, she was convicted of the same two offences she was to commit again on her current visit to Hong Kong, namely soliciting for an immoral purpose and breach of the conditions of her stay.  She was fined and given a suspended sentence on each charge and subsequently deported.  It was not realised at that stage that she had used a false identity when she first entered Hong Kong.

7. Insofar as the present offence is concerned, the learned magistrate ordered that the 11 months’ imprisonment should run consecutively to the sentences totalling 3 months which she was then serving. 

8. The appellant appeals against the sentence of 11 months’ imprisonment as being too severe.  She refers again to matters that were put before the magistrate and which he referred to in his Reasons for Sentence, namely that she has three teen-age children, one of whom is disabled and a sick mother.                                    

9. There are certain discrepancies between what was said on her behalf on the 15^th September 2006 and today, which lead me to view what she says with a certain amount of scepticism.  On the 15^th September, it was said that her mother was aged 70 and was so ill that she only had a month or two to live.  Today, almost 3 months later, she said that her mother is aged 60 and is still looking after her children.

10. She still maintains that her mother is ill, but she says that formerly her mother’s condition was not that serious, but that it only deteriorated after she was sentenced.  Whatever be the truth of the matter, the magistrate referred in his Reasons for Sentence to the fact that the appellant was a widow with three teen-age children, that one of those children was disabled and that her mother was said to have only 2 months to live. 

11. The circumstances described to me today by the appellant if true are very distressing, but do not in my view warrant a departure from the normal sentence for this sort of offence.  The learned magistrate was persuaded by the reasoning of Deputy Judge McMahon (as he then was) in HKSAR v. Yim Lee Kuen, HCMA 1187 of 2002 that sentences for an offence under section 42(1)(a) of Cap.115 involving the lawful gaining of entry to Hong Kong by the use of a false two-way permit should be comparable to the sentences imposed in respect of other offences involving the gaining of entry into Hong Kong with false travel documents.

12. The magistrate accordingly adopted a starting point of 18 months’ imprisonment.  He discounted that by one-third to reflect the appellant’s plea of guilty.  That would have resulted in a sentence of 12 months’ imprisonment.  Generously in my view, he applied a further discount of 1 month to reflect the extra period the appellant had to serve as a result of the activation of the suspended sentence imposed on her in November 2004 when she was convicted in August 2006.

13. I am satisfied that the sentence imposed by the magistrate was not too severe, and circumstances do not warrant any reduction in sentence.  I dismiss the appeal against sentence.