HKSAR v. LIU ZHAOJIU

HCMA 566/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 566 OF 2008

(ON APPEAL FROM STCC 3252 OF 2008)

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J U D G M E N T

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1.  The appellant appeals against the sentence of 12 months’ imprisonment imposed upon him by Mr T.S. Jenkins at Shatin Magistrates’ Court on 30 May 2008 following his plea of guilty to a charge of making a false representation to an immigration assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, Cap. 115 (“the Ordinance”) knowing the same to be false or not believing the same to be true, contrary to section 42(1)(a) of the Ordinance.  

2.  The appellant, a 61 year-old married mainlander, admitted that when he arrived at Hong Kong airport on 28 April 2008 he had produced a South African passport which bore his photograph but a false name and date of birth and an arrival card bearing the same false particulars for immigration clearance.  

3.  At the time he admitted that the South African passport had been arranged for him by a friend in Shenzhen for his “travel convenience” and that he obtained it without going through normal procedures. 

4.  The appellant had a clear record. 

5.  The magistrate was told by the counsel then appearing for the appellant that the appellant was the vice director of a mainland company which had a Hong Kong subsidiary and that the appellant was travelling to Hong Kong on business.  It was also submitted that the appellant had committed the offence simply because of carelessness and ignorance. 

6.  On hearing that the appellant had medical problems the learned magistrate called for a medical report before passing sentencing. 

7.  The medical report showed that apart from hepatitis and diabetes the appellant had been suffering from avascular neurosis of his left femur causing him pain and difficulty in walking.  It went on to state that during his period of remand the appellant had been referred to a visiting orthopedic specialist for treatment and had been referred to a visiting medical specialist for further management of his hepatitis and diabetes. 

8.  In passing sentence the magistrate understandably rejected the defence submission that the offence was committed out of ignorance and carelessness.  One of the ingredients of the offence to which the appellant had pleaded guilty having received legal advice was that the representation was made by him “knowing the same to be false or not believing the same to be true”. 

9.  The magistrate adopted a starting point of 18 months which he reduced by one third to reflect the appellant’s plea of guilty. 

10.  In his formal reason for sentence the learned magistrate referred to the comments of Deputy Judge McMahon (as he then was) in HKSAR v. Yim Lee Kuen, HCMA1187/2002, a case of making a false representation to an immigration officer, in adopting the starting point of 18 months’ imprisonment.  

11.  On the basis of the medical report he received the magistrate said that he was confident that the defendant’s medical problems would be fully addressed during his prison term. 

12.  The matter first came before this court on 29 August 2008.  The appellant was unrepresented.  He sought to argue that the offence had come about simply because he had been unable to read the English wording on the passport obtained for him by the immigration agency.  He also claimed that the arrival card had been filled out by somebody else and he simply signed it without reading it.  These allegations of ignorance were of course incompatible with his plea and in any event unworthy of credit. 

13.  More significantly he informed the court that he had still not seen an orthopedic specialist and had been told that he had to wait a year.  In the meantime he was being treated with painkillers.  He also claimed that the medical report before the magistrate misrepresented his condition. 

14.  Since three months had elapsed since his sentence and his lawyer had informed the magistrate that the appellant needed an urgent operation and that if he did not undergo the operation as soon as possible he would be permanently paralysed, I adjourned the hearing so that the appellant could be seen by an orthopedic specialist.  He has now been seen by an orthopedic specialist Dr Chan Chi Fat of Queen Mary Hospital on 10 October who diagnosed the appellant has suffering from avascular necrosis of the right hip.  It was recommended that the management of this condition be conservative with oral analgesic and self-exercise physiotherapy.  It also stated that total hip replacement should be considered if adequate conservative treatment failed. 

15.  The matter came before the court again going today when the appellant was represented by Mr Egan who did not appear for the appellant in the Magistrates’ Court.  The court also had before it a translation of a long letter from the appellant which had been handed to the court on the previous occasion. 

16.  Mr Egan has not sought to argue that the course of medical treatment proposed is inappropriate particularly in the light of the appellant’s estimated date of release.  I am satisfied that the appellant will receive such appropriate medical treatment as his condition requires while he is in custody. 

17.  Mr Egan also accepted that the appellant would have been aware that he was submitting a falsified South African passport to the Hong Kong immigration authorities when he attempted to enter Hong Kong on 28 April 2008.  

18.  In his submissions before the court Mr Egan took up a point raised by the appellant in his letter to the court.  In his letter the appellant complained that the magistrate sentenced him on the basis of him using a forged South African passport when the 1^st charge he faced, that of using a forged travel document contrary to section 42(2)(b) of the Ordinance, had been withdrawn and the matter had proceeded on the basis of the present charge under section 42(1)(a).  

19.  Mr Egan has submitted that even though both offences carry the same maximum term of imprisonment a charge under section 42(1)(a) is less serious, even though the representation may have been made by the submission of a false passport, and should carry a lesser sentence. 

20.  I do not accept that submission.  There is nothing to suggest that an offence under section 42(2) is necessarily less serious than one under section 42(1).  The court is bound to sentence the defendant on the basis of the facts put before it.  Indeed it appears that if the matter had proceeded on both charges then both charges would have been based on the same facts. 

21.  The magistrate was bound to take notice of the fact that the false representation alleged in the charge was based on the false South African passport.  While there was no evidence that it had not been originally genuinely issued to the man whose name appeared on it, there was no dispute that it bore the appellant’s photograph.  It clearly therefore had been falsified before being used by the appellant. 

22.  I share the view expressed by McMahon J in HKSAR v. Yim Lee Kuen, HCMA1187/2002 when he said :

“… it seems to me that there is considerable illogicality in distinguishing, so far as sentence is concerned, between persons charged pursuant to section 42(1) of the Ordinance with making a false statement to an immigration officer by way of producing a forged or false travel document and so misrepresenting their identity to him and a person who, on the basis of the same facts, is charged with an offence pursuant to section 42(2) of the Ordinance with using a forged or false travel document.  Importantly both offences carry the same penalty pursuant to section 42(4).”

23.  Mr Egan’s main submission is based upon the fact that it was never drawn to the magistrate’s attention that, although the appellant submitted a falsified South African passport to the Hong Kong immigration authorities, he was in possession of a valid PRC passport and a valid entry permit to Hong Kong.  He could therefore have legitimately entered Hong Kong on the basis of those documents.  The prosecution accept that to be the case. 

24.  Mr Egan submits that based on that fact coupled with the fact that the appellant was a 61 year-old man of previous good character who had medical complaints, who was not charged with any other offence, and all the other circumstances of the case, the sentence was too severe and should be differentiated from sentences passed in other cases without these features.  He submits that the false South African passport had been obtained by the appellant’s company for him to travel to foreign countries particularly in Africa on business.  He draws attention to the account given by the appellant in his letter to the court.  The appellant says that on 28 April 2008 he was travelling to Hong Kong by air with two fellow directors, one of whom had suggested on the flight that they test their false South African passports.  He had therefore done so.  His fellow directors had passed though different immigration counters in Hong Kong without being questioned.  Mr Egan submits that the appellant current plight is the result of his stupidity in testing the false South African passport. 

25.  I am satisfied that the circumstances of this case are unusual and the fact that the appellant was entitled to enter Hong Kong lawfully on other documentation is a relevant factor that should have been drawn to the magistrate’s attention. 

26.  I am satisfied however that the sentence passed by the magistrate was a proper one even bearing in mind that the circumstances which have now been brought to this court’s attention. 

27.  This was a deliberate attempt by the appellant to deceive the Hong Kong immigration authorities of his identity and nationality.  The Court of Appeal in R. v. Wang Ju Wen, CACC272/1988 endorsed the view expressed by me at first instance in that case that what made this sort of offence particularly serious is that it deprived countries of knowing the true identity and nationality of people entering their territory and that at a time when societies are threatened by international crime, including terrorism, it was particularly important that states should not be deceived about these matters.  The international element of this offence also has to be borne in mind.  On his account the appellant was “testing” this passport, presumely with a view to its use to deceive the immigration authorities of other countries.  If the passport had already been accepted by the Hong Kong immigration authorities and bore its chop that might have tended to lend credence to its purported validity. 

28.  A starting of 18 months’ imprisonment in my view adequately reflects the unusual circumstances in this case. 

29.  The courts have frequently suggested that higher starting point for offences involving false travel documents are justified. 

30.  In Yim Lee Kuen McMahon J expressly stated that the person who used a false passport to enter Hong Kong would be liable to a penalty of 15 to 18 months’ imprisonment after plea if prosecuted under section 42(2) of the Ordinance.  In HKSAR v. Bodomo Marissa Flores, HCMA343/2005 Deputy Judge To said the usual tariff for making a false representation to immigration officer involving forged travel documents on a plea of guilty was 15 months’ imprisonment.  

31.  Sentences of 18 months’ imprisonment were upheld after pleas of guilty in respect of possession of single forged travel document contrary to section 42(2) of the Ordinance in R. v. Wong Kwai Pui, HCMA796/1987 and R. v. Yu Wing Kuk, HCMA346/1984 a decision of Court of Appeal. 

32.  I am satisfied that the sentence of 12 months’ imprisonment in this case was not excessive or wrong in principle.  I dismiss the appeal against sentence.