HKSAR v. YANG CHET MING and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

1998, No. 390
(HCMA)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court)::

1. The 1st and 2nd Appellants are husband and wife. They appeared before T.S. Jenkins Esq. magistrate and both pleaded guilty to two offences under the Immigration Ordinance. The first offence was using an unlawfully obtained Malaysian passport, contrary to s.42 2(b) of the Ordinance and the second was making a false representation to an Immigration Officer, contrary to s.42 1(a). The false representations were statements that the Appellants had been born in Malaysia when in fact both had been born in China.

2. Both Appellants were sentenced to 9 months' imprisonment on each count which was ordered to be served concurrently. The 1st Appellant lodged an appeal in time and the 2nd Appellant lodged an appeal out of time. The 2nd Appellant has furnished an explanation for being out of time. In an application she states that she had been under the mistaken impression that her husband had prepared and lodged an appeal on her behalf. I am satisfied in the circumstances that leave should be granted to the 2nd Appellant to prosecute her appeal out of time and leave for this is granted.

3. Both Appellants advance mitigating circumstances in support of their appeals.

4. The 1st Appellant states that he needed to travel to Thailand urgently as a close friend was being threatened by other persons with violence if he did not discharge his indebtedness to them. Were he to travel on his properly issued Chinese passport there would be delay in obtaining the requisite of approvals. It was to circumvent these formalities that he used the Malaysian passport which he had purchased some time before.

5. The 2nd Appellant has said that her reason for travelling with the 1st Appellant was that he had recently undergone surgery to his chest. She wished to look after him.

6. The 2nd Appellant also refers to the problems which have arisen as a consequence of hers and her husband's incarceration in Hong Kong. The main problem concerns their two-year-old son. The lady who was minding the boy has been unable to continue to do so. She sent him to 2nd Appellant's parents in Shanghai. Unfortunately the parents are not in good health and it would appear are incapable of attending to the boy's needs.

7. Mr. Jenkins had this to say when he passed sentence.

"The admitted facts revealed that D1 and his wife D2 had been intercepted at Kai Tak airport on 12th March 1998 each in possession of a Malaysian passport which D1 had bought for himself and his wife at a cost of HK$100,000 through a middleman for travel convenience. The passports did not record D1 and D2's true place of birth (which was China and not Malaysia as stated) and they had used these passports for taking trips to Hong Kong since 1996. When intercepted D1 and D2 were departing Hong Kong for Thailand and they had produced these passports for clearance. In so doing D1 committed Charges 1 and 2.

D1 was a businessman with a clear record and was ordinarily a mainland resident together with his wife and child. I was asked to give D1 credit for his plea and was told that although the passports had been used for travel convenience he and his wife were holders of genuine PRC passports.

In sentencing D1 I considered that his case came into the third category of offender referred to by Mr. Justice Bewley in R. v. Bhagwant Singh Padda MCA 1447 of 1998 namely that of a businessman making repeated use of a false passport whilst travelling in South East Asia. I took as my starting point concurrent terms of 15 months' imprisonment and gave a generous discount of 6 months' imprisonment to reflect D1's plea and clear record. I so sentenced."

8. It is not possible to conclude that the magistrate was wrong to impose the sentences he did. These were serious offences. It is imperative that sentences are imposed which provide sufficient deterrent to ensure that the offences of this nature are not committed.

9. Having said all of this there are very compelling mitigating circumstances in this case. I am particularly concerned about the circumstances of the Appellants' young son where there is no one to look after him. Entirely as a humanitarian act I propose reducing all of the sentences which were imposed from 9 months to 6 months' imprisonment. To this extent the appeal is allowed. As before all of the sentences will be concurrent.