HKSAR v. FANG AIQUN

HCMA 719/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. hcma 719 OF 2007

(ON APPEAL FROM STCC 4974 OF 2007)

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J U D G M E N T

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1.  The Appellant pleaded guilty in the Magistracy to four charges.  On Charge 1, Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, she was sentenced to 15 months’ imprisonment.  Charges 2, 3 and 4 related to her making false representations to an Immigration Assistant on 24 July 1999, 10 July 2004 and 3 June 2005.  On Charge 2, she was sentenced to 6 months’ imprisonment, 3 months of which was to run consecutively with the sentence on Charge 1.  Charge 3, earned a sentence of 12 months’ imprisonment and an order was made that 3 months’ of that sentence was to run consecutively to the sentences on charges 1 and 2.  On Charge 4, a sentence of 12 months’ imprisonment was imposed; 3 months of that was ordered to run consecutively to the sentences on Charges 1, 2 and 3. The total term of imprisonment therefore was 2 years.  The Appellant appealed against sentence; I dismissed the appeal and advised that I would hand down my reasons at a later date.  Those reasons follow.

2.  The Appellant was represented on appeal by Mr Grounds, who did not take issue with the individual sentences or the starting points, but complained that the total sentence was manifestly excessive and wrong in principle, because the sentence on Charge 4 should have been ordered to run wholly concurrently to each of the other sentences.  Alternatively, for the sentence on Charge 3, only 1.5 months should have been ordered to run consecutively to Charges 1 and 2, and further, of the sentence on Charge 4, only 1.5 months should have been ordered to run consecutively to the sentences on Charges 1, 2 and 3, so that a total sentence no greater than 21 months was appropriate.

3.  The Appellant, a mainland resident, was arrested on 12 January 2007 when she went to Kwong Wah Hospital to give birth.  Enquiries revealed that she had been to Hong Kong on several occasions, under different identities.

4.  Under caution the Appellant admitted that she had sneaked into Hong Kong on 11 January 2007 in order to be delivered of her baby (Charge 1).  She admitted that her true identity was FANG Ai Qun, with her date of birth being 7 November 1974.  Between October 1998 and July 2000, she used her true identity on numerous occasions to come to Hong Kong. 

5.  From August 2000 to January 2001, she had overstayed in Hong Kong and was eventually sentenced to imprisonment for 1 month, suspended for 2 years and was repatriated to the Mainland.  In July 1999, she presented herself falsely to Immigration using her aunt’s Chinese permit in the name of FONG Siu Fa, to enter Hong Kong; this was after a row with her husband (Charge 2).

6.  In order to conceal her previous record the Appellant had engaged an agent to obtain for her a Two-Way Permit which bore her true name, but a false date of birth.  She used that permit to enter Hong Kong on numerous occasions.  On 10 July 2004, she presented the false Two-Way Permit to an Immigration Assistant upon entering Hong Kong (Charge 3), and used it again to leave Hong Kong on 3 June 2005 (Charge 4).

7.  When sentencing, the Magistrate took into account the Appellant’s pleas of guilty, her family circumstances and the reason she came to Hong Kong.  He noted that her husband was handicapped, that she had young children to look after and that she had given birth to a baby in January 2007, which she was caring for in prison.  The Magistrate noted that she used a false permit to mislead the Immigration Department officials, because of her previous conviction under her true identity.

8.  The Magistrate considered various authorities on sentencing.  On Charge 1 he noted R v SO Man-king & Others [1989] 1 HKLR 142, where the Court of Appeal had held that the proper sentence for illegally remaining was 15 months’ imprisonment on a plea, unless there were strong humanitarian grounds.  He noted too, that sneaking into Hong Kong to give birth to a baby did not amount to strong humanitarian grounds and that sentences in such cases should be longer than 15 months, between 24 and 27 months.

9.  On the false representation charges, HKSAR v YIM Lee-kuen HCMA 1187/2002, showed that the starting point after trial for using a false travel document and making a false representation was 18 months’ imprisonment.  The Magistrate on Charge 2, imposed only 9 months’ imprisonment reduced by one-third for the plea; that was because that offence pre-dated YIM Lee-kuen.  Charges 3 and 4 were committed after the YIM Lee-kuen decision and thus the 18 months’ starting point was applicable to those offences.  Those sentences also were reduced by one third for the plea.

10.  The Magistrate considered whether consecutive or concurrent sentences were appropriate.  He was satisfied that consecutive sentences were appropriate in each case, as the illegal remaining was separate and distinct from the false representations and the false representations were separated in time from one another by almost one year.

11.  Mr Grounds did not complain about the individual sentences for the four charges, but submitted that when imposing the total period of imprisonment the Magistrate had not properly considered the issue of totality.  He complained there was no “rounding-out” or “flattening-off” effect of the total sentence as its length increased.  He argued that there should not be a straight line progression but rather a “rounding-off” and the total sentence should have been one of 21 months’ imprisonment.  He pointed out, rather unnecessarily, that a court confronted with a number of conviction offences, should embark upon a three-stage process.  That is exactly what the Magistrate did.

12.  As for the totality of sentence for Charges 3 and 4, counsel contended that the Magistrate became too involved with the issue of consecutive or concurrent sentences.  He referred to HKSAR v Xie Yazhong, where McMahon J imposed partially consecutive sentences, involving two offences about 20 months apart.  Mr Grounds distinguished McMahon J’s approach by designating it as “case specific” to the facts of the case with which he was dealing and suggested the Magistrate may have over-concentrated on the facts of another case when determining the total sentence.  That submission was not borne by a consideration of the Magistrate’s Reasons for Sentence.

13.  The Magistrate was perfectly aware of the facts and the mitigation.  He knew that despite the Appellant’s claim that she was anxious to return to her handicapped husband and sick child, she had chosen to come to Hong Kong knowing both those problems existed.

14.  It was also suggested that the Magistrate had failed to direct himself upon the matter of the “sample charges” and for that reason might have increased erroneously the Appellant’s sentence.  This was because the Magistrate had referred to the numerous occasions when the Appellant had committed similar offences with the same false documents.

15.  The Magistrate, according to Mr Grounds, erred in not stating, explicitly, that he put those offences out of his mind when sentencing.  There is no indication that the Magistrate had inflated the sentences because of other possible offences, which were before the court only as background information.

16.  The Magistrate followed the proper sentencing processes.  He took into account mitigation; he looked at the principles set out in the relevant cases.  It is difficult to see what else he could have done to achieve proper sentences.  There was no basis for holding that the sentence overall was excessive or wrong in principle.  Accordingly, I dismissed the appeal.