HKSAR v. DE VERA Agnes M

HCMA109/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 109 OF 1998

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J U D G M E N T

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1. The appellant in this case pleaded guilty to two counts of forgery, all contrary to Section 71 of the Crimes Ordinance. In all these counts they involved the appellant who at the material time was working in the Kelly Personal Limited, an agency involved with handling employment contracts for Filipino domestic helpers.

2. Whilst she was working there sometime in 1996, the appellant, in handling one such contract involving a Filipino domestic helper who was engaged or was to be engaged by a

Mr LEE Hon-key in Hong Kong obtained from Mr LEE a water bill and a gas bill relating to the premises in which Mr LEE resided. However, as Mr LEE was a tenant of those premises, the respective bills, the water bill and the gas bill, were in the name not of Mr LEE but of the owner of those premises. Because of that the appellant in a very amateurish way altered the name that was on the two bills to that of Mr LEE Hon-key and submitted those two bills to the Immigration Department for purposes of proving the residential address of Mr LEE.

3. Let me immediately say that any offences involving forgery is a serious offence in Hong Kong. Let alone one which involved forged documents being supplied to the Immigration Department for whatever purpose.

4. Having said that in this case, the appellant was of a clear record and no doubt did what she did out of stupidity more than anything else. In passing sentence, the learned magistrate, having recognised the seriousness of the offence and keeping in mind that these offences of forged documents of support being quite common nowadays, was of the view that an immediate custodial sentence was appropriate so as to reflect an element of deterrence.

5. The learned magistrate thereupon took a starting point of twelve months reducing that to one of six months in the case of each charge on account of the appellant's plea of guilty and her clear record and made the sentences concurrent.

6. In his reasons for sentence, he seemed to have overlooked the personal circumstances of this appellant. There are clear authorities in Hong Kong to the effect that generally speaking a deterrent sentence is not justified in the case of a first offender of which this appellant is one. And if authority is needed on that point, the case of HO Kau reported in the 1978 Hong Kong Law Reports page 197; another case of the Attorney General v LAU Chiu-tak reported in the 1984 Hong Kong Law Reports page 23, and the recent case of R v LEUNG Kwong in 1993 Vol II Hong Kong Criminal Law Reports at page 224, all go towards supporting that proposition.

7. In the circumstances I can but form one view that the learned magistrate erred in principle in imposing an immediate custodial sentence on the basis of deterrence. Having said that, I should make it clear to this appellant that in the light of this conviction if she were to embark on anything similar of such a nature in future she could hardly expect any leniency from these courts.

8. In the circumstances I will substitute the sentence of six months imposed by the learned magistrate on each count for one which would allow the immediate release of the appellant and I so order. This is made in view of the fact that the appellant had already spent two months and three days in prison since being convicted of those two offences in the Magistrate's Court. That will be the sentence substituted for the six months' sentence imposed by the magistrate on both counts.

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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B. Pirie Date: 28 March 1998