HKSAR v. WONG NGAN MUI

HCMA 155/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 155 OF 2003

(ON APPEAL FROM ESCC 369/2003)

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J U D G M E N T

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1. This Appellant appeals against a sentence of 6 months' imprisonment imposed on her for an offence of Making a False Representation to an Immigration Assistant, contrary to s. 42(1)(a) of the Immigration Ordinance, Cap. 115.

2. The facts to which the Appellant pleaded, showed that in December 2002 she was arrested by police for breach of condition of stay. Investigation revealed that she had come to Hong Kong in March 2002 under her true identity of Wong Ngan Mui, date of birth 16 September 1976. On that occasion of her arrest, she was repatriated to Mainland China in April 2002.

3. In order to enter Hong Kong again to seek a job, Appellant stole her younger sister's China permit and her PRC identity card - those documents were in the name of Huang Yin Zhen, date of birth 21 November 1983.

4. On 14 December 2002, the Appellant arrived in Hong Kong posing as, and falsely representing herself to be, her younger sister to an Immigration Assistant on the occasion of her arrival clearance. Initially she was permitted to stay as a visitor, but she was arrested on 17 December 2002.

5. The Appellant had three previous convictions of an immigration nature:

(1) Unlawful Remaining and Possession of Forged Identity Card for which she was sentenced to 10 months plus 9 months, imprisonment, concurrent, on10 December 1999;

(2) She was sentenced to 2 months imprisonment for a further Breach of Condition of Stay on 9 March 2002;

(3) There also appears on her record a conviction for another Breach of Condition of Stay on 19 December 2002. This breach of condition of stay was connected with the current offence, although dealt with separately.

6. I am advised today that the reason it was dealt with separately was because the Appellant was found working as prostitute and charged with breach of condition of stay, and it was not until some time later after fingerprints had been investigated, that it was found she had come here under another guise at an earlier time. For that reason, the offence was dealt with separately by the court. There was no indication at the time of her arrest for breach of condition of stay, that this present offence had been revealed to the authorities by the Appellant.

7. No special mitigation was advanced before the Magistrate. When sentencing, the Magistrate took into account the serious nature of such offences, in particular noting that such offences deprived Hong Kong of the opportunity and the right of knowing the true identity of entrants to the HKSAR (see R v Wang Ju Wen [1989] 2 HKLR 26). The Magistrate also noted the sentencing authorities of Bhagwant Singh Padda, MA 1447/1988 and R v Christian Obi, MA 366/1992. He took a starting point of 9 months and gave 1/3 discount for the plea of guilty.

8. Today the Appellant relies on the usual grounds that her sentence was too severe. She said her parents were ill and she had no option but to come to Hong Kong. She asked the court to consider that she served 10 weeks for the breach of condition of stay as well as 6 months for this offence. She told the court that the Magistrate who gave her the 10 weeks had taken into account her previous convictions and increased the sentence from what she considered to be the usual one month. She said she was the sole bread winner and she needed to return to China.

9. I consider the Magistrate's sentence in this case was a proper one as to starting point and he gave full credit for the only mitigating feature, the Appellant's plea of guilty.

10. I note that the sentences for this offence and the breach of condition of stay might more easily have been dealt with together. I also note that the fault lies with the Appellant as to why they were not dealt with together. Accordingly I do not propose to adjust the sentence to take into account that they were dealt with separately. This appeal is dismissed.