HKSAR v. WU HUIZHEN

HCMA323/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.323 OF 2006

(ON APPEAL FROM STCC 2869 OF 2006)

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J U D G M E N T

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1. The appellant was convicted on her own plea of one charge of “using a false travel document for the purpose of Part II of the Immigration Ordinance” contrary to section 42(2)(b) of the Immigration Ordinance (Cap.115) [Charge 1] and one charge of “making a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance” contrary to section 42(1)(a) of the same ordinance [Charge 2].  She was sentenced the concurrent terms of 12 months’ imprisonment.  She appeals against that sentence.

2. The admitted facts reveal that in order to go to Japan from Mainland China for job seeking, the appellant had paid a middleman an initial deposit of 10,000 RMB.  She had then used her own passport to leave the Mainland for Macau, and then on the journey from Macau to Hong Kong on 17 March 2006 she was given a false passport and a bogus Japanese Certificate of Alien Registration.  She then presented the false passport for clearance at the China Ferry Terminal control point thereby committing Charges 1 and 2. 

3. The following is what the magistrate had this to say about this case :

“The defendant had a clear record.  I was told in mitigation that the defendant was a divorcee in mainland China with 2 teenage children.  I was asked to be lenient.

In sentencing the defendant on Charge 1 I considered that she came into the second category of offender referred to by Mr Justice Bewley in R v Bhagwant Singh-Padda Mag App No 1447 of 1988 namely that of an offender seeking to leave China via Hong Kong by the use of a false passport.

In R v Tong Hung-Hong Mag App No 891 of 1990 where Mr Justice Bewley also presided, the Judge said that the proper starting point for this type of offence was 18 months imprisonment following 2 earlier Court of Appeal decisions (R v Yu Wing-wut (CA No 346/84 & R v Wang Ju-wen (CA No.272/88).  This starting point has been followed by Mr Justice Sears in the later case of R v Mui Man Chiu Mag App No 1160 of 1996 and was the starting point I adopted in this case.  I therefore reduced that sentence by 6 months in the defendant’s case to take into account her clear record and plea.  Charge 2 also merited a concurrent 12 months prison sentence. 

I expressly advised the Duty Lawyer representing the defendant that I did not accept that the defendant was in transit, given the fact that she had arrived from Macau at the China ferry terminal control point and not at the airport.  In those circumstances, the defendant was not entitled to any further discount in sentence.  I so sentenced.”

4. In my judgment, the magistrate’s reasoning and use of precedents are both unassailable.  On the contrary, all that the appellant would say before me is that she was ignorant about the law and that her family is in financial difficulty. 

5. There is no merit in this appeal and it is dismissed.