HKSAR v. WONG NGA CHING

HCMA430/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.430 OF 1998

----------------------

-----------------------

-----------------------

J U D G M E N T

-----------------------

1. The Appellant pleaded guilty to two offences, one of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, and the other offence of possession of a forged travel document.

2. She pleaded guilty to those two offences before Mr David Lok on 11th April 1998, and for the first offence, she was sentenced to 15 months' imprisonment and the second offence, of three months' imprisonment, to be served consecutively.

3. What was said in the Brief Facts of the case was that the Appellant had paid RMB4,000 for the two-way permit to be made for her. When she received the two-way permit, she discovered that all the personal particulars recorded in it did not relate to her except that the photograph was hers. She then entered Hong Kong illegally from Chiu Chow on 2nd April 1998, but six days after arrival she was intercepted by a police officer in Mongkok. When she was asked for her identification papers, she produced the two-way permit. It was said in the Brief Facts of the case that the Appellant sneaked into Hong Kong with the intention of securing a job.

4. There is no dispute that for the first offence, the sentence of 15 months' imprisonment is the usual sentence which has been approved of by the Court of Appeal. I think it is only in relation to the consecutive sentence of three months' imprisonment that Mrs Remedios is now appealing on behalf of the Appellant.

5. What the learned Magistrate said in his Reasons for Sentence was that having considered the matter very carefully, he was of the view that the Appellant only had the intention of finding employment in Hong Kong on the strength of her forged two-way permit. But he found that up to the time of her arrest, she had not taken any action with a view to finding employment. Furthermore, he was of the view that for her to be able to successfully find employment in the present climate, the chances were not very high. It was for those reasons that he had some reservations about whether the sentence imposed for the offence of possession of the forged travel document should be consecutive to the first sentence.

6. Mr Simon Tam, for the Director of Public Prosecutions, had submitted that following the case of The Queen v. Wang Ju-wen [1989] 2 HKLR 26, the sentence of 18 months' imprisonment for the offence of possession of a forged travel document would be an appropriate sentence. What the Court of Appeal in that case said about the seriousness of certain offences is that a forged passport should be regarded as a serious offence because a forged passport does not tell the country to which the Defendant enters on the strength of the forged passport any real particulars about that particular Defendant. That is of course perfectly true if one was dealing with passports which enable the defendant to travel to all countries. Here we are dealing with, not a passport, but a two-way permit issued by the PRC Authorities which only entitles the Appellant to come to Hong Kong and Macau.

7. I agree with the learned Magistrate that, in this particular case, there was no evidence that the Appellant had attempted to use this false permit to try and obtain employment or to do any other things like opening a bank account in Hong Kong. Because of that particular matter, I think the usual sentence of 15 months' imprisonment would be sufficient to meet the justice of this particular case.

8. Accordingly the appeal is allowed to the extent that the sentence of three months imposed on the second charge will be made concurrent and not consecutive. The sentence of 15 months' imprisonment on the first charge will remain as it is.