THE QUEEN v. LI GUO HUA

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 109 OF 1993

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J U D G M E N T

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Penlington J.A.:

1. This is the judgment of the court.

2. This is an application for leave to appeal against sentence out of time which originally came before Bokhary J.A. on the 23rd March. He referred the matter to this court, pursuant to s. 118(1)(d) of the Magistrates Ordinance.

3. The facts of the matter, which were not in dispute before the magistrate, were that the applicant is a businessman with two factories in China that require him to travel frequently on business. In order to facilitate that travel he obtained, at a price of M$12 000, a Malaysian passport. It is not challenged that the passport was a forgery and he was arrested on the 11th September 1992 on arrival at Kai Tak Airport. He pleaded guilty to two charges: one of using an unlawfully obtained travel document contrary to s. 42(2)(b) of the Immigration Ordinance, Cap. 115 and a second charge of making a false representation to an immigration assistant under s. 42(1)(a) of the Ordinance.

4. When he was sentenced it was submitted in mitigation that he used the passport to facilitate his business; he is a married man with one son and that his wife was five months pregnant. He has a clear record and any sentence of imprisonment would be very damaging to his business.

5. The magistrate, Mr. D.M.B. Gill, had regard to the authorities, particularly that of R. v. Yu Wing Wut, Mag. App. No. 36 of 1984, and found that 18 months was the appropriate starting point for sentence. Having taken into account the applicant’s plea of guilty to the charges, his cooperation and the other mitigation factors he reduced that to one of 12 months on each charge, to be concurrent. Subsequently, however, the applicant put forward an application to appeal against sentence out of time on the basis that his mother who resides in China is terminally ill of liver cancer and he has produced letters from relatives and also documents from medical authorities in China.

6. It has been pointed out by Mr. Bruce who appears for the Crown that production of medical records indicating that family members are suffering from illnesses in China is extremely common in the case of illegal immigrants wishing to secure a reduction in sentence on humanitarian grounds. The production of those documents is, from a strictly legal point of view, wrong in that they are not supported by evidence and must be viewed with considerable caution. Nevertheless the documents produced here did seem to show that the applicant’s mother was dying of cancer and no doubt he wished to see her again while still alive.

7. Each case such as this must undoubtedly be examined carefully as to its merits. It is indeed surprising the number of cases in which persons convicted of immigration offences suddenly find that a close relative is suffering from a serious disease in China. However we have examined documents produced here and they certainly appear to be authentic. Mr. Gill was also of that view but they only came before him when giving leave to appeal.

8. We also take note of the fact that the applicant is due to be released in any event in about three weeks’ time.

9. The sentences imposed cannot, on the facts before the magistrate at the time of sentence, in any way be faulted and this case should not be taken in any way as a precedent - it is purely one to be decided on the evidence before the court.

10. We have taken into account the facts here and the attitude of the Crown on this appeal which has been put forward in his usual fair way by Mr. Bruce. We on humanitarian grounds grant the application for leave, treat this as the hearing of the appeal and substitute a sentence which will enable the applicant’s immediate release.