HKSAR v. NG WING FAI

HCMA504/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.504 OF 2006

(ON APPEAL FROM STCC 4119 OF 2006)

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J U D G M E N T

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1. The appellant, who appears in person, appeals against sentences that were imposed on him by Mr T.S. Jenkins in the Magistrates’ Court at Shatin on 24 April 2006 following his pleas of guilty to two charges alleging offences contrary to the Immigration Ordinance.  On Charge 1 the appellant was sentenced to 8 months’ imprisonment, whilst on Charge 2 he was sentenced to 4 months’ imprisonment.  Those sentences were ordered to run consecutively.  Accordingly, the total sentence of imprisonment imposed upon the appellant was 12 months.

The charges

2. Charge 1 alleged that “between a day in August 2004 and a day in September 2004”, presumably on a day in one of those two months, the appellant had transferred to another a travel document, namely an HKSAR passport, without reasonable excuse, contrary to section 42(2)(a)(ii) of the Immigration Ordinance, Cap.115.  Charge 2 alleged that on 11 November 2005 the appellant made a statement, knowing it to be false or not believing it to be true, namely that he had lost his passport, and that he did so for the purpose of obtaining a travel document, namely a HKSAR passport.  The passport alleged to have been transferred, as particularised in Charge 1, and the passport claimed to have been lost, as particularised in Charge 2, was the same passport, issued in the name of the appellant.

The facts

3. At the time of his pleas and for the purpose of conviction and sentence the appellant accepted the contents of the “Brief facts of thecase”.

4. On 23 March 2006, the appellant was interviewed by immigration officers about the circumstances in which his passport, namely the passport referred to in the particulars of Charge 1, had been used by another person to seek to enter France in early November 2005.  The appellant admitted that he had sold his passport for $1,200 to an unknown man, having answered a newspaper advertisement in about August or September 2004.  As instructed by that man he had reported the loss of the passport and his belongings to the police on 7 October 2004.  He did so as a step towards obtaining a replacement passport.  In an application for the issue of a replacement passport made on 11 November 2005 he stated falsely that he had lost his passport.  Subsequently, he was issued a new replacement passport.

Reasons for sentence

5. The magistrate noted that the appellant had a clear record and that he had committed the first offence in order to obtain money for medical expenses for both his girlfriend and his mother.  He committed the second offence when he sought to obtain a replacement passport in order to go to Japan with his girlfriend to celebrate her birthday.

6. The magistrate stated that he imposed a deterrent sentence having regard, in particular, to the fact that the offence the subject of Charge 1, had an international dimension.  The magistrate stated that the only authority of which he was aware for the offences alleged in the two charges was a judgment of Duffy J sitting as a single judge in a magistracy appeal,R v. Wong Wing Tong, (unreported), HCMA224 of 1990.  In that case, the appellant had sold his passport to a friend for $3,000, that was reflected in charge 1 which alleged an offence contrary to section 42(2)(a)(ii) of the Immigration Ordinance, after which he reported it lost and made a false application for a replacement passport, which conduct was the subject of a second charge, contrary to section 42(1)(c) of the Immigration Ordinance.  That appellant had pleaded guilty and had been sentenced to 12 months’ imprisonment on the charge of transferring the travel document and 3 months’ imprisonment for the false statement made to obtain a travel document.  The magistrate had ordered those sentences to be served concurrently.  In considering sentence for the first charge the magistrate had taken a starting point of 15 months’ imprisonment.  The appellant in that case was 24 years of age, of good character and had pleaded guilty at the earliest opportunity, having made full admissions to the officers of the Immigration Department at a very early stage.

7. In his judgment Duffy J stated that he was not aware of any authorities in sentencing in these circumstances.  He said that the appropriate starting point for the 1^st charge should have been 12 months’ imprisonment.  He allowed the appeal against sentence and imposed a sentence of 6 months’ imprisonment in respect of the 1^st charge, not interfering with the magistrate’s order that the sentence be served concurrently with the other sentence of 3 months’ imprisonment.

8. The magistrate in this case stated that he adopted the same starting point for Charge 1, namely 12 months’ imprisonment, which he discounted by one third for the appellant’s plea of guilty.  For Charge 2 the magistrate stated he took a starting point of 6 months’ imprisonment, which again he discounted by one third for the appellant’s plea of guilty.  Accordingly, the sentences imposed by the magistrate in respect of Charges 1 and 2 were 8 months’ and 4 months’ imprisonment respectively.

9. Whilst he noted that Duffy J had ordered that the sentences to be served concurrently, the magistrate indicated that he regarded the circumstances of the commission of Charge 2 an aggravating feature which merited a consecutive sentence.  Accordingly, he ordered the sentence imposed on Charge 2 to be served consecutively to the sentence imposed in respect of Charge 1.  The total sentence of imprisonment imposed was 12 months.

Grounds of appeal against sentence

10. The appellant relies on the bare averment contained in the Notice of Appeal that his sentence was too severe.

The respondent’s submission

11. Miss Laura Ng, for the respondent, submits that the magistrate was correct in both the level of sentences imposed in respect of each charge and in his order in making the whole of the sentence imposed in respect of Charge 2 consecutive to that imposed in respect of Charge 1.  In answer to inquiries of the court as to whether she was able to assist the court with previous instances of sentencing in respect of false statements made by Hong Kong citizens to obtain passports, Miss Ng indicated that she had initiated such inquiries of the Immigration Department, whom she said had told her, not surprisingly, that there were such cases, but, in the event the information not having been made available to her, regrettably she was unable to place any such information before the court today.

Conclusion

12. I am satisfied that the magistrate was correct to state that the commission of the second offence was an aggravating feature and that it merited a consecutive sentence.  Furthermore, I am satisfied that the individual sentences imposed in respect of each charge were themselves correct.  However, having regard to the principle of totality, and bearing in mind that the appellant, a 34-year-old man of previous good character, had made an immediate and full confession of his culpability to the officers investigating the matter, in my judgment it is not necessary to make the whole of the sentence imposed in respect of Charge 2 consecutive to that imposed in respect of Charge 1.  In my judgment, a total sentence of 10 months’ imprisonment adequately reflects the gravity of the offences. 

13. Accordingly, I allow the appeal to the extent that I quash the order that the sentence of 4 months’ imprisonment imposed in respect of Charge 2 be served consecutively with the 8 months’ imprisonment imposed in respect of Charge 1.  I order that only two months of the sentence of 4 months’ imprisonment imposed in respect of Charge 2 be served consecutively to the sentence imposed in respect of Charge 1.  In the result the total sentence of imprisonment imposed on the appellant is 10 months.