HKSAR v. NGUYEN BUI KHANG

[English Translation - 英譯本]
HCMA 50/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 50 OF 2012

(ON APPEAL FROM STCC NO. 108 OF 2012)

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REASONS FOR JUDGMENT

Background

1.  The appellant was charged with the following offences:

(1) Charge (1):

“Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”，contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.

(2) Charge (2):

“Making a false representation to an Immigration Officer lawfully acting under or in the execution of Part II of the Immigration Ordinance”, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.

2.  The appellant pleaded guilty to both charges before the magistrate, and upon agreeing the facts of the case, he was convicted as charged.  He was sentenced by the magistrate as follows:

(1) Charge (1): 15 months’ imprisonment; and

(2) Charge (2): 12 months’ imprisonment.

The sentences on the two charges were ordered to be served consecutively, making a total of 27 months’ imprisonment.

3.  The appellant appealed against sentence.

4.  After the hearing, I allowed the appeal and ordered:

(1) the sentence of 15 months’ imprisonment on Charge (1) to stand; and

(3) the sentence of 12 months’ imprisonment on Charge (2) to be set aside and substituted with one of 8 months’ imprisonment.

I ordered that 2 months in the term of 8 months imposed on Charge (2) be served consecutively to the 15 months imposed on Charge (1), making a total of 17 months’ imprisonment.

5.  These are my reasons.

Facts of the case

6.  The facts admitted by the appellant were in paragraph 4 of the magistrate’s reasons for sentence:

“4. The defendant admitted the following facts:

(i) On 27 September 2011, the defendant was arrested by the police for “unlawful remaining”; and was subsequently transferred to the Immigration Department for repatriation formalities;

(ii) On 30 September 2011, while under the investigation of the Immigration Department, the defendant expressed to an immigration officer that his name was BUI KHANG and he was born on 14 June 1994 (“Identity 1”);

(iii) However, the Immigration Department found out that the Vietnamese government had issued a Vietnamese Laissez Passer to the defendant to facilitate his return to Vietnam, which bore the name NGUYEN BUI KHANG and date of birth 4 February 1986 (“Identity 2”). Hence the Immigration Department carried out further investigation into the case；

(iv) Under caution, the defendant admitted that:

(a) “Identity 2” was his true identity;

(b) He sneaked into Hong Kong from Mainland China on 24 September 2011 and after landing in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration and was arrested by the police on 27 September 2011 (particulars of Charge 1);

(c) In order to delay the repatriation to Vietnam, on 30 September 2011, he expressed to an immigration officer that he was the person having “Identity 1” (particulars of Charge 2); and

(d) Subsequently, since he wanted to return to Vietnam immediately to resolve his debt matters, he reported his true identity, namely “Identity 2”, to the Vietnamese authority; and thus the Vietnamese authority issued the abovementioned Vietnamese Laissez Passer to him.”

7.  It was not clear in the facts admitted by the appellant how he, while being detained by the Immigration Department, could have reported his true identity to the Vietnamese government without the knowledge of the Immigration Department, and the latter became aware of this matter only after they realised that the Vietnamese government had issued him a Laissez Passer bearing “Identity 2” and thus enquired him.  Therefore, in the appeal hearing, I enquired the appellant and the respondent into it.

8.  Upon enquiry, I came to know that the Vietnamese government, after receiving the information of “Identity 1” from the Immigration Department, held the view that “Identity 1” and “Identity 2” might relate to the same person, so they sent someone to the Immigration Department, and that person interviewed the appellant alone without the presence of any staff of the Immigration Department.  The appellant declared his true identity during the interview and hence the Immigration Department was in the dark at the material time.

Reasons for sentence

9.  In respect of Charge (1), the magistrate relied on the case of So Man King[1]and sentenced the appellant to 15 months’ imprisonment.

10.  In respect of Charge 2, the magistrate applied the case of Yim Lee Kuen[2], adopted a starting point of 18 months, after giving the appellant a one-third discount for his plea, sentenced him to 12 months’ imprisonment.

11.  In considering the totality of sentence, the magistrate took into account a number of authorities[3]. Having regarded that it was 3 days after the appellant had been arrested for “unlawful remaining” that he “made a false representation”, the magistrate found the two offences separate and distinct with significant legal or moral distinction, and ordered the two sentences to be wholly consecutive to each other, making a total of 27 months imprisonment.

Grounds of appeal

12.  The appellant, represented by Mr Andy Hung of counsel, appealed against only the sentence on Charge (2) and the sentence in total.

13.  In respect of Charge (2), Mr Hung contended that this case was different from general cases of “making a false representation” in that it was not for the purpose of gaining entry into and thereby remaining in Hong Kong unlawfully that the appellant committed the offence of “making a false representation”, therefore it was wrong for the magistrate to apply the case of Yim Lee Kuen.

14.  In the case of Yim Lee Kuen, the court took into account that in general and most cases of “making a false representation” prosecuted under section 42(2), the defendants made false representations to immigration officers by using false identity documents so as to enter and thereby remain in Hong Kong unlawfully, and even gain unlawful employment in Hong Kong.  On the other hand, those various “immigration offences” covered in the case of So Man King are all related to the same essential element: namely “unlawful presence in Hong Kong”.  If, similarly, the above general and most cases of “making a false representation” were considered, the appropriate sentence should not depart from the sentence of 15 months upon a guilty plea as laid down in So Man King.  Therefore, the court in Yim Lee Kuen held that in general and most cases of the offence of “making a false representation”, 18 months was the appropriate starting point after conviction.

15.  Mr Hung stated that the appellant had entered Hong Kong unlawfully and thus was arrested.  After that, in order to delay the repatriation to Vietnam, he did not scruple to misrepresent his identity so as to extend the time of detention in Hong Kong, thereby committing the offence of “making a false representation”.  The defendant’s circumstances were different from the general and most defendants who committed the offence of “making a false representation” in order to enter and remain in Hong Kong unlawfully.  The starting point of 18 months imprisonment adopted by the magistrate was plainly excessive.

16.  As to the totality of sentence, Mr Hung argued that it was only for the purpose of extending the detention in Hong Kong or delaying the repatriation to Vietnam that the appellant committed the offence of “making a false representation” during detention after the arrest for the offence of “unlawful remaining”.  From this perspective, the offence of “making a false representation” and that of “unlawful remaining” basically related to the same thing.  Had the appellant not been arrested for “unlawful remaining” and waited for repatriation to Vietnam, the offence of “making a false representation” would not have been committed.  The crux of the whole matter rested on the appellant’s intention to remain in Hong Kong with unlawful means.  The sentences in respect of the two charges should run concurrently.

Respondent’s reply

17.  Miss Betty Fu, Public Prosecutor for the respondent, submitted in respect of Charge (2) that for the offence of “making a false representation”, in general and in most cases, the arrested persons falsely represented to immigration officers that they were of another identity, causing the immigration officers to allow them to enter and remain in Hong Kong on the basis of the false identities. The motive behind individual arrested persons to make false representations would not have significant impact on the sentence.  It is because once it was proved that the arrested person had made a false representation deliberately, the Immigration Department in Hong Kong would not be in the position to know the true identity of the arrested person, which might resulted in crimes with international elements coming into Hong Kong.  On this premise, this case in fact did not differ much from other cases of “making a false representation”.

18.  The respondent contended that although this case was not one of gaining unlawful entry into Hong Kong by way of making a false representation, covering one’s identity remained the reason for the appellant to make the false representation.  From the perspective of sentencing, there should not be any difference and a starting point of 18 months was not inappropriate.

19.  The false representation made by the appellant involved a Vietnamese identity, bringing the charge an international element and making it more serious than the use of two-way permit involved in Yim Lee Kuen. Therefore a starting point of 18 months was not manifestly excessive and it was not wrong in principle.

20.  Miss Fu suggested that whether the two charges in this case had no significant legal or moral distinction depended on whether the appellant could have avoided committing the second offence after the commission of the first one, or if the two offences in fact originated from one single incident and could not be severed.  This also determined if the two charges were separate and distinct.

21.  In this case, the appellant had unlawfully remained in Hong Kong between 24 and 27 September 2011 (Charge (1)) and been transferred to the Immigration Department pending repatriation.  This appeared to be the end of the matter. However, in the interview on 30 September, out of selfishness, the appellant made a false representation of his identity to the immigration officer in the hope of delaying repatriation (Charge (2)).  Apparently, the two incidents were distinct.

22.  Furthermore, even if the appellant had not made any false representation of his identity to the immigration officer, he would still have to face the charge of illegal remaining.  Therefore, Charge (2) did not originate from Charge (1), and the two charges involved different guilty conduct and should be dealt with separately.

23.  Therefore, with respect to the totality of sentence, it is proper for the magistrate, having regard to the authorities, to order the sentences of the two charges to be served consecutively.

My consideration

Charge 2

24.  First, in my view, the circumstances under which the appellant had made the false representation to the immigration officer in this case were indeed different from those in general and most cases. It was not for the purpose of unlawfully entering and remaining in Hong Kong that he made the false representation.  In fact, when the appellant made the false representation, he had already been arrested by the police for unlawful remaining and transferred to the Immigration Department for repatriation.  It was for the purpose of delaying repatriation that he made the false representation.

25.  It should be noted that after making the false representation,  the appellant was still a person who had lost freedom and in the custody of the Immigration Department and could not move around freely within the territory of Hong Kong (albeit moving around under the circumstances of unlawful remaining).

26.  The facts in this case were different from the circumstances  that had been considered by the court in Yim Lee Kuen.  I agree with Mr Hung’s submission that the magistrate should not have applied that case in considering the starting point of the sentence.

27.  For a person who has entered Hong Kong unlawfully, or remains in Hong Kong after unlawful entry, if he has made a false representation to an immigration officer, no matter he is a foreigner, or a Chinese who has crossed the border to come to Hong Kong; no matter the false representation involves a proof of identity/travel document issued by a foreign country or by the Chinese government, the situation is just the same.  The offence is serious because of deceiving immigration officers.  I do not agree that this case is more serious than the case of Yim Lee Kuen.

28.  I took into account the special circumstances in this case and found that an appropriate starting point was 12 months’ imprisonment.  After giving a one-third discount for the guilty plea, the appellant should be sentenced to 8 months’ imprisonment.

Totality of sentence

29.  Most cases that the magistrate has considered involved a defendant who, apart from committing the offence of unlawful remaining, also committed other offences, such as burglary, robbery and resisting a police officer.  Obviously, these offences are entirely different from unlawful remaining, and the sentences should run consecutively.

30.  In my view, the court should first consider if the sentences of the two offences should be served concurrently or consecutively, and if they are to run consecutively, the court should further consider the totality to avoid the overall sentence becoming excessive.

31.  Although the appellant had first committed the offence of unlawful remaining, and it was after his arrest and while being detained by the Immigration Department that he made a false representation to an immigration officer, which was not for the purpose of unlawfully remaining in Hong Kong, it was still his intention to continue to remain in Hong Kong (albeit under detention).  Such act of his was to a certain extent related to his unlawful remaining and hence differed a lot from those other offences like robbery.

32.  Even if the two offences could be regarded as separate, and the offences might well be distinct, in view of the special circumstances in this case, I found that it was wrong to have the sentence imposed on Charge (2) to be wholly consecutive to that on Charge (1), but it was also not appropriate for the two sentences to be wholly concurrent with each other.  In my view, it was proper to have part of the term of the sentence on Charge (2) to run consecutively to that on Charge (1).

33.  Having regard to the totality of sentence, I found that a term of 17 months’ imprisonment in total was sufficient to reflect the appellant’s culpability.

34.  In light of the above reasons, I ordered that the appeal be allowed, the term of 15 months’ imprisonment imposed on Charge (1) to stand, and the term of 12 months’ imprisonment on Charge (2) be set aside and substituted with 8 months’ imprisonment.  Two months in the term of 8 months imposed on Charge (2) was to be served consecutively to the 15 months on Charge (1), making a total of 17 months’ imprisonment.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.