HKSAR v. SIT YUK KEUNG

HCMA 1016/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1016 OF 1999

(ON APPEAL FROM WSCC 12741/1999)

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J U D G M E N T

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1. The appellant, aged 21, and his father, aged 73, appeared before K A Browne Esq in the Magistrate's Court at Western on 5 October 1999. Each of them faced a charge of making a false representation to an Immigration Officer lawfully acting under or in execution of Part II of the Immigration Ordinance, Cap. 115. Such conduct is an offence under s. 42(1)(a) of that Ordinance. Both the appellant and his father pleaded guilty. Each of them was sentenced to three months' imprisonment. The appellant now appeals against sentence. The Magistrate very properly granted him bail pending such appeal on the basis that his sentence would have been served by the time his appeal was heard if he was not granted such bail.

2. The false representations made by the appellant and his father related to a boy by the name of Sit Lee-san. This boy is the son of the appellant's father's adopted son. But he i.e. the boy who came to Hong Kong from the Mainland on a one way permit masqueraded as a brother of the appellant and a son of the appellant's father. Both the appellant and his father participated in this masquerade. The appellant falsely represented to an immigration officer that the boy was his brother. The appellant's father falsely represented to an immigration officer that the boy was his son.

3. In his Statement of Findings the Magistrate indicated that he took a starting point of nine months' imprisonment for the appellant and his father; that he gave them discounts for their guilty pleas and clear records; that he gave the appellant a further discount because "he was acting on the instructions of his father"; and that he gave the appellant's father a further discount because of "his age and his ill-health".

4. The appellant was well on his way to becoming another typical Hong Kong success stay. He had come here legally from the Mainland not very long ago. Counsel for the appellant had handed up a letter from the principal of the appellant's former school, who speaks very highly of the appellant and pleads leniency on his behalf. He was a first-year student at the University of Hong Kong. And he was shouldering some of the burden of taking care of his mother who is not well. Then came this offence, which occurred on 19 December 1999.

5. It would appear that the appellant had very little time to think when his father urgently called upon him to help a relative from the Mainland. If he had more time to reflect on the implications of what he was being asked to do, then perhaps he may have declined to do it however difficult it may have been to turn down his father's request or disobey his instructions.

6. The Magistrate had a difficult task in determining the appropriate sentence to pass on this appellant, and I have not found this case at all easy. Ultimately, I have come to view this matter in the following way. It would be more than a pity and would in fact be a tragedy if this one offence were to crush the appellant and destroy his future. Whatever I do about sentence, his future prospects are severely damaged by the fact of his conviction. But it would make, I feel, a great difference to his chances of eventual rehabilitation, both in his own sprit and in the perception of others, if he did not actually spend time in prison. The Magistrate was quite right in saying that these are serious offences. Moreover, misguided loyalty to friends and relatives in the Mainland is not uncommon. It may well be that there will come a time that these offences will become so prevalent that it will not be possible to avoid an immediate custodial term even in circumstances like the present. I hope not. Anyway that time has not yet come.

7. I will allow this appeal so as to suspend the appellant's three month-term for a period of two years. He will appreciate that if he offends again during that period, he will become liable to serve the present term as well as any other term imposed for the further offence. Of course I do not expect that he will ever offend again. I expect that he will realise that the court has given him a chance and that he will make the most of that chance.