HKSAR v. JIANG FENG

HCMA533/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 533 OF 2011

(ON APPEAL FROM STCC 1553 OF 2011)

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REASONS FOR JUDGMENT

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Background

1.  The appellant was charged with 2 counts of making a false representation to an Immigration Assistant, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.

2.  She pleaded guilty to both charges and was sentenced to a concurrent term of 12 months’ imprisonment.

3.  The appellant appeals against the sentence.

The admitted facts

4.  On 23 February 2007, the appellant entered Hong Kong on the strength of a Chinese Permit bearing the personal particulars of another person (Madam Cheng Wen).  Using the same document, the appellant had departed Hong Kong on the next day.  Then the appellant used her own travel document to come to Hong Kong on 4 April 2011.  Upon enquiry by the immigration, she admitted that in February 2007, when she travelled to Hong Kong, her own Chinese permit had not been issued, so she made use of her cousin’s permit for immigration clearance.

Mitigation

5.  The appellant was a first offender.  She was aged 26 and married with a 3-year-old daughter.  She was an accountant in the Mainland.

6.  In mitigation, her counsel told the Magistrate what happened was that around the time of the offence in 2007, her company offered a leisure tour to Hong Kong as a reward for all the staff.  The appellant, who was then 5-month pregnant, was anxious to join the tour but there was not enough time for her to obtain a permit.  So she foolishly used the permit that belonged to her cousin.  Counsel added that it was only a one-day shopping tour and had nothing to do with working in Hong Kong.

The sentence

7.  In passing sentence, the Principle Magistrate stated that he had taken into account all the mitigating factors including the guilty plea and the appellant’s good record.  He took the view that the offences were very serious.  Those making false representation as to identity should expect the same punishment as those using a false travel document, and the usual term for that would be 12 months’ imprisonment after a guilty plea : HKSAR v Chu Man [1999] 1 HKC 189.

8.  The Magistrate stated that there was no compelling reason for the appellant to join the tour, especially when she was pregnant at the time.  The Magistrate commented that the appellant had demonstrated a sheer disrespect of the immigration control systems of the Mainland and Hong Kong.  The Magistrate therefore adopted the starting point of 18 months for each offence and reduced that to 12 months for her good record and guilty plea.  Both terms were allowed to run concurrently.

The grounds of appeal

9.  I had granted the application to appeal against sentence out of time.

10.  Mr Ross, counsel for the appellant, had argued that the appropriate starting point should be 6 months, not 18 as adopted by the Magistrate, and that the terms should be ordered to run concurrently.

11.  He argued that the present case did not involve any use of forged documents to achieve the misrepresentations, here the appellant was producing a genuine travel document, albeit that it belonged not to her.  In the circumstances, counsel argued, the line of authorities that apparently supported sentences in the range of 12 to 18 months would not be applicable.

Discussion

12.  I am not sure I could agree with Mr Ross’ submission about the difference between the use of a genuine document and a forged document.  While the use of a forged document would, as the respondent pointed out, an aggravation, it was the misrepresentation to the immigration authorities, whether by another’s permit or by a forged one, that constituted the offence.

13.  Leaving aside the analysis of the various authorities, the factual circumstances, however, did show a case of compulsiveness on the part of the appellant in fetching somebody else card to come to Hong Kong.  It was foolish for her to do so, perhaps in her eagerness to shop in Hong Kong.  But she did return to the mainland after a day’s visit.  Although the respondent pointed out that the appellant had tried to compound her misrepresentation to the immigration officer by suggesting having had a face lift to explain away the difference in her appearance and the photograph, on the whole, the criminality in the present case was less serious than the usual cases of this nature.

14.  Having considered all the circumstances, and not criticising the starting point of 18 months as adopted by the Principle Magistrate, I would reduce the sentence by 3 months.

Result

15.  The appeal was allowed to the extent that the original sentence of 12 months would be reduced to 9 months.