HKSAR v. LAI WU QIANG

HCMA 790/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 790 OF 2008

(ON APPEAL FROM STCC 5502/2008)

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J U D G M E N T

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1.  On the 7 August 2008, at Shatin Magistracy, the appellant pleaded guilty to three offences under the Immigration Ordinance, Cap. 115 (“the Ordinance”).  He also admitted a breach of a suspended sentence and was sentenced by the Principal Magistrate, Mr T.S. Jenkins, to a total of 18 months and six weeks’ imprisonment, which was made up as follows:

Charge 1: Making false representations to an immigration assistant, contrary to section 42(1)(a) of the Ordinance, on 20 September 2004 – 12 months’ imprisonment.

Charge 2: Making false representations to an immigration assistant, as above, on 27 April 2005 – 12 months’ imprisonment, 3 months consecutive to Charge 1 and 9 months concurrent.

Charge 3: Breach of condition of stay, contrary to section 41 of the Ordinance – 6 weeks’ imprisonment, consecutive to the above.

Breach of suspended sentence: 3 months’ imprisonment, consecutive.

2.  The appellant appeals against the sentences saying that they are too severe.

3.  The admitted facts show that the appellant was intercepted and arrested by a police officer on the 25 July 2008 and was found to have breached his condition of stay as a visitor by overstaying (Charge 3).  He had entered Hong Kong using his own identity on the 30 March 2007 and was permitted to stay for seven days, to the 6 April.  He did not leave and so, by the time of his arrest, had overstayed for approximately 16 months.

4.  Investigations showed that the appellant (Lai Wuqiang, born on 30 December 1978) had visited Hong Kong under a different identity.  In 2004, in the Mainland, he used the personal details of someone called Lai Xueyong, born on the 14 September 1980, to obtain a Chinese permit bearing his photograph, so that he could enter Hong Kong more frequently.  He used that permit to enter Hong Kong on the 20 September 2004 (Charge 1) and thereby falsely represented to the immigration assistant who cleared him to enter that the name and date of birth on the permit were his.  He did the same on the 27 April 2005 (Charge 2).

5.  The magistrate took a starting point of 18 months’ imprisonment for each of Charges 1 and 2, which he reduced to 12 months to reflect the pleas of guilty.  He ordered that the sentence on Charge 2 run partly consecutively to the sentence on Charge 1, as set out above.  On Charge 3 he took a starting point of nine weeks’ imprisonment and reduced it to six weeks because of the plea of guilty.  That sentence was to run wholly consecutively.

6.  The offence in Charge 2 was committed approximately 2 weeks after the imposition upon the appellant of a suspended sentence of 3 months’ imprisonment for forgery.  Thus he was in breach of that sentence suspended sentence and it was activated consecutively.

7.  The appellant complains today that the sentences (in their totality) were too severe.  He does not suggest that individually the terms were too long.  He has advanced personal reasons relating to his family as a basis for reducing the sentence – that he is the breadwinner for his family, that his father is diabetic and in need of costly treatment, that his daughter is at school which requires funding:  in my judgment, however, none of these is properly to be regarded as an exceptional humanitarian reason to justify a reduction in sentence or a variation from the normal sentence imposed for these offences.  Thus the real question is simply whether the sentences imposed followed the norm and whether the totality of the sentence was proper.

8.  For Charges 1 and 2, a minimum sentence of 18 months’ imprisonment after trial is very well established: see for example HKSAR  v Yim Lee-kuen, HCMA 1187/2002, where Deputy Judge McMahon, having reviewed a number of cases, held that such a term was justified, and that on some earlier authorities, an even higher starting point might be regarded as appropriate.  The appellant says that he did not realise the offences were so serious; but that is not a reason to reduce the appropriate sentence.

9.  Here the magistrate followed established practice by reducing the 18 month starting point by one third to reflect the pleas of guilty.  The length of the sentence imposed cannot be faulted: it was entirely proper.

10.  As to Charge 3, the term of nine weeks, reduced to six weeks for the plea, was also well within the appropriate sentencing norms.  It is (as the Court of Appeal said in HKSAR v Tiongson Patricia Manalad [2002] 1 HKLRD 681) the length of the overstay which is significant.  Here, for 16 months’ overstay, a sentence, before discount, of nine weeks was proper and so the six-week discounted sentence was not excessive.

11.  As to the totality of the sentences, the two offences of false representations to immigration assistants were separated by time and were distinct events.  I ignore for the purposes of sentence, as did the magistrate, the admitted fact, repeated by the appellant today in his submissions, that he had used the false permit 17 times between September 2004 and April 2005 and thereby made the same false representation on each occasion, because he was not to be sentenced for sample offences.  Nevertheless, the repeated offence, six months after the first offence, as reflected in Charges 1 and 2, justified a greater sentence and the overlap of three months in the sentences was correct in all the circumstances.

12.  The overstay offence was also separate and distinct and justified an additional term.  I agree with the magistrate’s decision to make that sentence consecutive and the combination of sentences for the charges, 15 months and six weeks’ imprisonment, was by no means excessive.

13.  As to the suspended sentence, the magistrate was obliged by section 109C(1) of the Criminal Procedure Ordinance, Cap. 221, to activate the sentence unless it was unjust to do so in the circumstances arising since its imposition; and under section 109C(2), to activate it consecutively unless there were special circumstances.  There is nothing to show that it would be unjust to activate the suspended sentence.  It was breached by the appellant within a few days of its imposition and the magistrate was manifestly correct to activate it consecutively.  In doing so, the totality of the sentence remained proper.

14.  In all the circumstances, there is no merit to this appeal and I dismiss it and confirm the sentences imposed.