HKSAR v. LUU VAN LANG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 948 OF 1998

(On Appeal from SKC 2389 of 1998)

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J U D G M E N T

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1. The Appellant was charged with two offences. The first charge is one of remaining in Hong Kong without authority of the Director of Immigration. The second charge was he had in his possession a forged recognizance in the name of a different person.

2. The facts as had been admitted by the Appellant showed that he was intercepted by police officers in the Mongkok area on 28th July 1998. When he was asked to produce his proof of identity, he produced the recognizance, the recognizance with the photograph of the Appellant was purported to have been issued by the Immigration Department. The police checked with the Immigration Department and found that the recognizance was forged. The Appellant was then arrested. He admitted to the police under caution that he was an illegal immigrant and sneaked into Hong Kong by boat.

3. One unfortunate feature in this case is the fact that the prosecution did not have the documents confirming his clear record. As a result of which he had been remanded on a number of occasions.

4. When the learned magistrate sentenced the Appellant, she had considered various aspects. She had rightly considered the tariff in Hong Kong in relation to the first charge is one of 15 months unless there were humanitarian considerations and voluntary surrender.

5. The learned magistrate went on to consider that the Appellant first came to Hong Kong in 1988 and he was voluntarily repatriated to Vietnam in 1997. That whilst in Hong Kong before his voluntary repatriation, he met his girl friend and it seemed that the union had produced a daughter and that apparently was one of the reasons prompting the return of the Appellant.

6. The learned magistrate was of the view that that in itself did not amount to sufficient humanitarian consideration so as to enable her to depart from the tariff.

7. This afternoon, I am told by the Appellant that his father is getting seriously sick. I have come across many cases in which such claims or similar claims had been made. And invariably in those cases that had succeeded either the appellate court or the sentencing court would have had the benefit of some evidence. The evidence may take various forms, sometimes the court has the advantage of acting on medical practitioners' certificate via proper channel. Out of a sense of fairness to the Appellant, I did ask him if he was prepared to ask for time. He declined. In these circumstances, I just do not have any material save and except a bare assertion. With regard to this supposedly humanitarian consideration, my hands are therefore tied.

8. The learned magistrate also considered the proper sentence that was to be passed in relation to the second charge. She took a starting point of nine months and gave the Appellant a full discount of 1/3. I cannot say that the magistrate was wrong.

9. In these circumstances, the sentence cannot be said to be manifestly excessive and both sentences were correctly passed in accordance with the existing tariff. There is no fresh evidence before me justifying a departure. The appeal must be dismissed.