THE QUEEN v. HSU JEN YOUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 951 of 1988

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J U D G M E N T

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1. The Appellant was charged with two offences one of using on the 5th August1988 at the airport an unlawfully obtained travel document contrary to Section 42(2) (b) of the Immigration Ordinance, and the other of making a false representation to an Immigration Officer. He falsely represented that his birthday was other than the correct date, an offence contrary to Section 42 (1) (a) of the Immigration ordinance.

2. He pleaded guilty to both offences, and the facts were simply that when he arrived at the airport he presented to an Immigration Officer a Philippine passport in a name other than his own showing a date of birth other than his own and a place of birth other than his own. For one reason or another the Immigration Officer was suspicious as to the authenticity of the passport and the Appellant was detained and questioned about the matter.

3. The false document which he presented had been used on four occasions to gain entry to Hong Kong. In mitigation it was put before the magistrate that he was a successful businessman, that he used the false document for the purposes of travel convenience, that he was 60 years of age, and that he had high blood pressure.

4. The magistrate on the first charge ordered that he be imprisoned for 9 months in addition to a fine of $20,000, and on the second charge ordered that he be imprisoned for 3 months in addition to a fine of $20,000. He ordered that the sentences be served concurrently. The magistrate also ordered that both prison sentences be suspended for 2 years.

5. The Appellant was sentenced on 2nd September 1988.On the 5th September, the Prosecution applied to the magistrate for a review of the Sentences. The magistrate acceded to that application and fixed the date for the hearing of the review as the 9th September 1988. On that day after submissions by Crown Counsel and the referring of the Magistrate to two cases namely, R v. Wong Yiu Wing (Cr. App. 272 of 1988) and R. v. Yiu Wing Wat (Cr. App. 346 of 1984), the learned magistrate reviewed the sentences, quashed the original sentences and in lieu thereof imposed sentences of 9 months' imprisonment on the first charge, 3 months' imprisonment on the second and ordered that both sentences be concurrent. The result was that in lieu of the suspended sentences and fines imposed on he first occasion, the Appellant was sentenced to immediate imprisonment for 9 months but freed of -tire obligation to pay any fine.

6. The Appellant now appeals against the sentences, and in the course of the appeal, Mr. Sanguinetti, who appears for him today. has drawn my attention to 8 relevant cases, I do not propose to go through them because Mr. Hartman for the Crown concedes the point which Mr. Sanguinetti had made when referring to these cases, namely that they do decide that each case must be viewed in the light of its own facts.

7. However, the cases do establish a tariff for this type of offence and that a sentence of imprisonment for 9 months, to be served immediately is not an excessive sentence or wrong in principle where the offence is one which involves concealment of identity, as is the case here.

8. The Appellant used a name other than his own, and presented a document which falsely represented his date and place of birth. Now it is clear from the decisions to which I have been referred that the Court of Appeal regards that type of offence with a considerable degree of seriousness as Mr. Hartman points out, because to use Mr. Hartman's words it undermines the comity of nations".

9. Mr. Sanguinetti has submitted that what the cases do disclose is that since each case must be judged on its own facts, if there are peculiar circumstances in a particular case then it must be treated differently.

10. In this case there is nothing unusual in the circumstances surrounding the commission of the offence. What is unusual is the way in which thee Appellant was dealt with. Having been given a suspended sentence originally and having spent a few days in Hong Kong in the expectation that he would be able to leave in the belief that the matter was concluded and that he was free to go whenever he wanted to, it was I think, rather unusual and ratter startling for him to be brought back before the Court and have substituted for the original sentence, a sentence which meant the he had to go into custody immediately. A principle constantly applied by the Court of Appeal where the Attorney-General successfully applies to review a sentence is that a considerable discount must be allowed when substituting a severer sentence for that originally imposed.

11. I think that the same principle applies here and therefore I think that, but for one other factor which I will mention, the appropriate order for me to make in this case is to allow a discount of 3 months from the 9 months which the I think is the proper sentence. In this case, however, because this man is suffering from hypertension, the effect of this experience on him must have been greater than it would have been on a younger man in better health. Accordingly, therefore, I think that because of that particular circumstances, the appropriate sentence to substitute is imprisonment for 5 months. Accordingly I quash the original sentence and in lieu thereof impose a sentence of imprisonment for 5 months.