HKSAR v. LIN PEILUAN

HCMA373/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.373 OF 2003

(ON APPEAL FROM KTCC 2079 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.

2. The appellant pleaded guilty to one charge of using a false travel document and one charge of making a false representation to an Immigration Assistant.

3. The appellant applied for a false PRC identity card, used that to apply for a Chinese permit for travelling to and from Hong Kong and Macau. She came to Hong Kong and gained clearance through Immigration by the false permit. She was permitted to stay as a visitor but was arrested by the police during an operation in Yuen Long. She was originally sentenced to eight months' imprisonment on the first charge and four months' imprisonment on the second charge to run consecutively, making a total of 12 months' imprisonment.

4. The magistrate on review of the sentence, took a starting point of 18 months for each of the offences, reduced by one-third on her plea of guilty and sentenced her to 12 months' imprisonment on each charge to run concurrently.

5. The appellant now appeals against that sentence on the basis that it is too heavy and excessive in view of her own personal circumstances. She said that she had pleaded guilty at the first possible instant and she has mother and daughter in China, she wants to be released as soon as possible so that she could be able to go back and take care of them. In my view, she has not forwarded any humanitarian grounds sufficient for me to reduce sentence. On her guilty plea, the magistrate has already afforded her one-third discount.

6. The learned magistrate relied on the recent judgment in HKSAR v. Yim Lee Kuen, HCMA1187/2002, wherein McMahon DJ, 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 production of a false two-way permit to gain entry into Hong Kong. The rationale behind this is that for illegal remaining offences contrary to section 38 of the Immigration Ordinance, they would invariably attract a sentence of 15 months' imprisonment even on a plea of guilty. Most, if not all of 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 and would so be in breach of section 38 as well. McMahon DJ is of the view that similar level of sentence should reflect the seriousness of all these offences.

7. In the case of Li Xiao Feng, HCMA286/2003, Jackson J commented that he failed to see any distinction drawn between offences of using a false travel document and offences of making false representation relating to such documents. They are part and parcel of one whole criminal transaction, of which the aim of the offender is to gain entry and to stay in Hong Kong illegally.

8. The sentences in both of those cases were reduced to eight months' imprisonment in view of the "background of case law" which at least some suggest a starting point of 12 months' imprisonment for misrepresentation cases.

9. Whilst I agree that there should not be any distinction in sentences between the offences of using a false travel document and misrepresentation cases, the sentences of 12 months starting point adopted in the misrepresentation cases cannot be reconciled with McMahon DJ's reasoning in Yim's case.

10. Having said that, I also agree that a starting point of 18 months' imprisonment with offences involving offenders making use of false travel documents and offences relating to misrepresentation to Immigration officers in order to land illegally in Hong Kong is by no means manifestly excessive nor wrong in principle.

11. I conclude that there is no basis for me to interfere with the sentence passed by the magistrate. The appeal against sentence is dismissed.