HKSAR v. GUO JINGXING

HCMA15/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.15 OF 2006

(ON APPEAL FROM ESCC 3876 OF 2005)

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J U D G M E N T

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1. This is an application by the applicant to appeal out of time against the sentences imposed upon him by Mr Candy sitting at Eastern Magistrates’ Court on 15 September 2005.

2. The applicant had pleaded guilty to three charges.  In respect of the 1^st charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance and by virtue of regulation 2(1)(a) of the Immigration Regulations, Cap. 115, the applicant was sentenced to two months’ imprisonment.  In respect of the 2^nd charge of using a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177, the applicant was sentenced to 12 months’ imprisonment.  In respect of the 3^rd charge of using a false instrument, namely a false Construction Industry Safety Training Certificate, contrary to section 73 of the Crimes Ordinance, Cap. 200, the applicant was sentenced to four months’ imprisonment.  All sentences were ordered to run concurrently.  In other words his sentences totalled 12 months.

3. The applicant had entered Hong Kong on a China two-way permit.  In breach of his conditions of stay he had taken up employment with a construction company.  He had produced a forged Hong Kong identity card and Construction Safety Training Certificate to his employer.  He was arrested while working in road works in Caine Road.  He admitted he had bought the false identity card and certificate in Shenzhen.  He admitted that he committed the offence as his mother was sick.

4. The learned magistrate had adopted starting points of three months’ imprisonment on Charge 1, 18 months on Charge 2 and six months on Charge 3.  He gave the applicant the usual discount of one third.

5. The applicant was represented by a duty lawyer who informed the magistrate that the applicant was divorced and was the sole support of his aged mother, who had suffered a stroke in 1999, and two children aged 13 and 8.  He had come to Hong Kong to provide funds for his family and in particular the medical expenses for his mother.

6. The applicant only applied for extension of time to appeal against sentences on 1 December 2005.  He claimed that it was because he had received a letter from his daughter on 29 November 2005 (which he produced) informing him that his mother had suffered a stroke and that she was suffering from paralysis of her right limbs and was suffering from incontinence and there was nobody there to look after her save his 13-year-old daughter who has had to miss school to do so.  Today he told the court that his mother is still in hospital but he maintains that even so his daughter has to look after her.

7. The applicant does not suggest that the sentences passed by the learned magistrate were excessive at the time they were passed.  He is right in taking that view.   In my view the learned magistrate adopted what was in the circumstances a lenient view of the applicant’s conduct, particularly in relation to the 2^nd charge.  He only referred to the applicant having one previous conviction for a similar offence in 1999.  In fact the applicant had been in Hong Kong a year earlier and breached his conditions of stay.

8. This therefore is the third occasion he has been in Hong Kong and committed offences.

9. The Court of Appeal has said in HKSAR v. Li Chang Li [2005] 1 HKLRD 865 that the problem of overstayers who are in possession of false Hong Kong identity cards and who take up employment is so serious that deterrent sentences are called for.  It went on to say that where such an identity card was used to obtain employment, save in exceptional cases, the sentence upon plea should be 15 months’ imprisonment.

10. As I have said, the learned magistrate had taken a merciful view when imposing a sentence of 12 months’ imprisonment after plea.

11. What the applicant does suggest is that his mother’s stroke in November and the difficulties that have resulted should cause this court to interfere with the sentences on humanitarian grounds.

12. This court does have power to take into account strong humanitarian grounds for reducing a sentence.

13. However, the applicant was aware that his mother had already suffered one stroke before he entered Hong Kong on this occasion, with a view yet again to breach the laws of Hong Kong.  He chose to take the risk that her health might decline.

14. On what I have been told, I have some doubt whether, even if the applicant’s mother has had another stroke at the end of 2005, this has materially changed the situation since he left home and came to Hong Kong.  During a record of interview after his arrest, he mentioned that the reason he came to Hong Kong was because his mother was still in hospital.  If that is so he came to Hong Kong fully aware of his mother’s circumstances.

15. Even if, as he now maintains, his mother had been released home, and has only been recently hospitalised again, that deterioration in her condition cannot have been wholly unexpected.

16. I am satisfied that there are no grounds to interfere with the Magistrate’s sentences.

17. I refuse leave to appeal out of time.