HKSAR v. LI Yuk-kam

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 787 OF 1997

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REASONS FOR DECISION

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1. The appellant pleaded guilty to one count of making a false declaration contrary to Section 36(a) of the Crimes Ordinance, Cap. 200. The learned magistrate imposed a sentence of four months' imprisonment, plus a fine of $2,000. In his reasons for sentence, the learned magistrate indicated that this is one of the offences which warrants a deterrent sentence. He did not however support his observation by referring to any statistics, either by way of the number of cases being prosecuted under the section, or that the existing penalties imposed, which is usually by way of a fine, do not have sufficient deterrent effect.

The facts of this case were that, in August 1996, you submitted an application form for allocation of a unit under the Sandwich Housing Scheme. It was a joint application with your husband. One of the pre-conditions of such an application was that you had to make a declaration that you have not owned any property in the period from August 1994 to the day when you made the declaration, that is, 18 December 1996, whether directly or indirectly.

2. It was subsequently discovered that, in fact, you were the joint owner of a flat in Shatin between October 1991 to November 1996; hence the prosecution. I note, however, at the date of the declaration, you were not the owner of any property. In passing the sentence as he did, it appears from the reasons of sentence that the learned magistrate did not take into sufficient consideration the mitigating factors which were before him.

3. You were a first offender, and the contents of the Probation Officer's report was favourable. As a result of your false declaration, the Housing Authority confiscated the deposit of $175,500. You also had to forego the stamp duty and legal fees which are in the region of $30,000.

4. I am of the view that under all the circumstances the penalty imposed was manifestly excessive. I would therefore set aside the original prison term of four months' imprisonment and a fine of $2,000, and substitute it with a fine of $20,000.