HKSAR v. ZHANG CHANG YONG

HCMA1256/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1256 OF 2003

(ON APPEAL FROM KTCC7732 OF 2003)

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JUDGMENT

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1. This is an appeal against sentence only.

2. The appellant was convicted on his own plea of an offence of making a false representation to an immigration officer contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115. He was sentenced to eight months' imprisonment and now seeks a reduction in that sentence. He appears in person before me.

3. The facts of the case were that the appellant had lawfully gained entry to Hong Kong and had gone to the International Airport as part of a scheme to gain his illegal entry to the United States of America. At the Hong Kong International Airport he had presented his own passport to an immigration officer and told that officer that he was travelling to Thailand. He no doubt had a document in the nature of a boarding pass to support that claim. He then proceeded through to the transit lounge where he met a middleman by pre-arrangement who provided him with a boarding pass to a flight to the United States via Korea. He was provided also with a passport in the name of another person. He gave his own passport to the middleman.

4. The appellant caught the flight which was to take him to the United States but was intercepted by American immigration officers there and returned to Hong Kong.

5. The magistrate regarded the offence as serious. He took a starting point of 12 months' imprisonment and reduced that to eight months' imprisonment on the sole basis of the appellant's plea of guilty. In doing so, the magistrate adopted the reasoning in the decisions of HKSAR v. Lin Xiao Feng, HCMA286/2003 and HKSAR v. Wang Wu, HCMA801/2003. In both cases the court approved starting points of sentences for misrepresentations made to immigration officers of 12 months' imprisonment. Both those cases involved facts similar to the present. Both cases also adverted to the distinction in the present line of authorities as to sentences imposed for using forged or false travel documents and lesser sentences imposed in factually similar circumstances where the appellant had been differently charged with making a false representation to the effect that he was the person to whom the travel document related when he was not.

6. The present appellant is unrepresented and this case is not the time to embark upon any exhaustive review of the differing authorities. Suffice it to say that I generally agree with the comments of Jackson J in Li Xiao Feng to the effect that there seems little justification in logic to the imposition of different sentences in each of the above factual situations. Further, in my view, a sentence of up to 15 months' imprisonment after plea would generally be appropriate in both situations.

7. Having said that, it should be borne in mind that so far as the offence of making a false representation to an immigration officer is concerned, that offence is not restricted to false representations as to identity which are supported by false or other person's travel documents. The circumstances of such offences will vary considerably. It may well be that a false representation can be made as to something relatively trivial such as the purpose of a person's visit to Hong Kong. In any event it seems to me that sentences must be imposed with advertence to the misrepresentation actually made.

8. In the present case the offence committed in Hong Kong was that the appellant had told the immigration officer he was going to Thailand when he was not. That may well be a somewhat less serious offence to that of a misrepresentation going to identity. But against the background of the appellant making that misrepresentation so as to facilitate his intent to illegally enter another country with false documentation, the starting point of sentence adopted by the magistrate cannot be criticized.

9. I turn now to the primary ground advanced by the appellant. It is purely humanitarian in nature.

10. He says since he has been imprisoned in Hong Kong he has missed his family who need his support in Fujian province and that his mother is ill. He says since he has been in prison he has turned over a new leaf and now reads the Bible.

11. These matters, however, do not amount to the exceptional circumstances required to establish a basis for the early release from prison of an offender on humanitarian grounds.

12. Accordingly, the appeal is dismissed.