HKSAR v. CHAU KIN CHAU

HCMA928/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.928 OF 2003

(ON APPEAL FROM KCCC 14290 OF 2003)

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J U D G M E N T

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1. This is an appeal against sentence. The appellant pleaded guilty to 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 ("the Ordinance"); and one charge of making of 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 Ordinance.

2. The appellant made use of his friend's PRC identity card in order to conceal his previous record of overstaying in Hong Kong and obtained a Chinese permit to come into Hong Kong. He gained clearance through Immigration by the false permit. He was permitted to stay for 14 days as a visitor but he overstayed. He was sentenced to 14 months' imprisonment on each charge to run concurrently on his plea of guilty.

3. The learned magistrate adopted a starting point of 21 months for each offence. He relied on the recent judgment in Yim Lee Kuen, HCMA1187/2002 wherein Deputy Judge McMahon (as he then was), after a review of the authorities, came to the conclusion that a starting point of 18 months' imprisonment was justified in the circumstances of offences involving the production of a false two-way permit to gain entry into Hong Kong. The magistrate then enhanced the starting point because on the record, the appellant was a persistent offender.

4. The appellant now appeals against that sentence on the basis that it was too heavy and excessive. It is the submission of counsel that the case of Yim failed to make any distinction between entry into Hong Kong by a passport or a two-way permit. Further or in the alternative, it was argued that the enhancement of the starting point from 18 to 21 months was excessive and wrong in principle given that whilst he had committed immigration offences before, this was the first time he had used a false two-way permit.

5. The respondent submitted that the magistrate was correct in following the starting point as indicated in Yim's case. In their written submission I was also referred to the case of R.v. Simon Tam, HCMA489/1996 and HCMA490/1996 wherein it was held that the court could make a higher starting point in a case where a person had a history of multiple offences of a similar nature in the past.

6. Deputy Judge McMahon has fully reviewed the cases of similar nature in Yim's case. It is a highly comprehensive judgment and I do not propose to go over the same exercise again. I fully echo what is said therein. Whilst it was drawn to his attention a string of cases of similar charges and factual background with starting points ranging from six to twelve months, Deputy Judge McMahon concluded that as those who gained entry into Hong Kong by false two-way permits and misrepresentation to Immigration Officers would have been remaining in Hong Kong illegally, there should not be any reason why they should receive lesser sentence to those charged with illegal remaining offences, who would invariably receive 15 months' imprisonment on a plea.

7. I do note counsel's submission that for a first time offender of illegal remaining charge alone, the policy is that he will be repatriated without being charged. On the other hand one must not lose sight of the fact that using false travel document offences are of higher criminality because apart from involving the element of illegal remaining, it entails further positive acts to procure the illegal stay in Hong Kong.

8. The short answer to the submission that a distinction should be drawn between false passports and false two-way permits can be found in paragraphs 12 and 13 in Yim's case, which I shall quote as follows :

" It seems to me that there is even less justification for distinguishing factually between persons gaining entry to Hong Kong by way of a falsified passport and those gaining entry by way of a false two-way permit. Both are travel documents, both are necessarily used, as in the present, to allow the defendant to pretend to be a person he or she is not and so deceive the immigration officer into allowing them entry. It may be true that the production of a false passport is arguably the more serious offence as such a document purports to extend the protection of another sovereign country to the individual concerned whereas a two-way permit goes not much beyond the purpose of permitting the crossing of a border.

Balancing that argument, however, is the important fact that the border involved is that which is most vulnerable to illegal crossings into Hong Kong. It seems to me that the use of a false two-way permit in such circumstances is certainly no less serious than the possession of a false passport."

9. Deputy Judge McMahon went on to say that no distinction should be drawn between offences of using a false travel document and that of making false representations relating to those documents. He came to the conclusion that a starting point of 18 months for those offences would be appropriate.

10. Dealing with the enhancement point, there are clear authorities to the effect that for persistent offenders the starting point would sometimes need to be increased from what is the normal starting point for fresh offenders. This is to take into account of the aggravating feature of persistence and the failure of previous sentence to deter the offender on the one hand, and the court's duty to protect the public on the other.

11. The appellant in the present case has demonstrated a blatant disregard of the laws in Hong Kong. In 1997 he was sentenced to a total of 12 months' imprisonment for an offence of using an identity card relating to another person, and one charge of breach of condition of stay. He re-offended again in 2001, and for an offence of breach of condition of stay, he received two months' imprisonment. He further committed the present offence by covering up those records in order to gain entry into Hong Kong which he knew full well that he was neither entitled nor permitted to.

12. Taking all those into consideration, I conclude that the magistrate is correct in adopting a 21 months' imprisonment as a starting point for both offences. The appropriate one-third discount has been given on his plea. Whilst the present sentences might be set to be on the high side they are in no way manifestly excessive. There is no basis for me to interfere with the sentence passed by the magistrate.

13. The appeal against sentence is dismissed.