THE QUEEN v. TSANG CHIU SING

1993 No. 646
(Criminal)

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HEADNOTE

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SENTENCE - HONG KONG RESIDENT MAKING FALSE REPRESENTATION TO IMMIGRATION ASSISTANT CONCERNING PLACE OF BIRTH - FOUR MONTHS UPHELD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.646 OF 1993

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REASONS FOR DECISION

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1. On 2nd November 1993 I dismissed this appeal against sentence and I now give my reasons.

2. The appellant pleaded guilty in Western Magistrate’s Court to making a false representation to an Immigration Assistant, contrary to s.42(1)(a) of the Immigration Ordinance, Cap.115, and was sentenced to four months’ imprisonment by Mr Sinclair He pleaded not guilty to using an unlawfully obtained travel document, contrary to s.42(2)(b) of that Ordinance and the prosecution offered no evidence on that charge.

3. The facts of the case, which were admitted by the appellant, were in the following terms :

“           On 3rd May 1993, defendant arrived from Thailand and produced a Kampuchean Passport No.N020958 in the name of TSANG Chiu-sing born on 11th October 1954 in Phnom Penh. As information had been received to close scrutinize defendant’s travel document, defendant was stopped for enquiry. As examination revealed that the authenticity of the passport was in doubt, case was further investigated.

Enquiries revealed defendant was known as TSANG Chiu-sing but he was born in Guangzhou, China.

In June 1992, defendant went to Kampuchea and came to know a man called ‘Ah Keung’ who offered to fix defendant a Kampuchean Passport at a cost of US$3,000. Defendant agreed as it would be more convenient for him to travel to Kampuchea with a Kampuchean Passport than the Hong Kong Certificate of identity he was holding. Defendant was then advised to furnish a false place of birth to the authority so as to obtain the Kampuchean Passport. In the same month, defendant obtained the Kampuchean Passport.

On 3rd May 1993, defendant came to Hong Kong. Upon arrival examination, defendant produced for inspection the Kampuchean Passport and falsely represented that he was born in Phnom Penh.”

4. The appellant is a Hong Kong resident and possesses a Hong Kong Certificate of Identity and has right of abode in Hong Kong. He is a merchant who before his arrest was earning $50,000 per month. Much of his business was in Thailand and Kampuchea. He is married with four children but his family live in China and Canada. He has four previous convictions but nothing similar; his last conviction was in 1984. His father is 83 and is close to death in China.

5. In R. v. Wong Keung M.A. No.212/91 a Hong Kong resident pleaded guilty to the two charges which this appellant originally faced. He had arrived from China using an unlawfully obtained Portuguese passport. Reducing the 15 months’ sentence to six months, which would permit the appellant’s immediate release, Yang C.J. noted that the tariff of 15 months laid down to deter illegal immigrants from China was inapplicable to Hong Kong residents. He added that in his view even six months was too heavy a sentence for those offences.

6. On the other hand R. v. Wang Ju-wen [1989]2 HKLR 26 suggests that a sentence of 18 months’ imprisonment, after plea, on a Hong Kong resident convicted of using or possessing a false passport would not be excessive. In that case the appellant, who was born in Taiwan, had used Philippines and Malaysian passports on six occasions. Fuad V.-P. said the trial judge was right to stress the importance of bearing in mind our responsibility to other countries in relation to their travel documents and the use to which they are put. The court was also of the opinion that the mere fact that a defendant is a businessman who would not be able to do business so conveniently abroad unless he used a false passport cannot be regarded as a mitigating factor.

7. Counsel for the appellant made the point that the cases cited involved possessing or using a false passport, a charge of which the appellant was acquitted. This I agree should be reflected in the sentence. Nevertheless the appellant was convicted of an offence against the same section. Furthermore, the misrepresentation occurred when the appellant produced the passport, which falsely stated his place of birth and, accordingly, his national status. The remarks of Fuad V.-P. have equal validity in such cases.

8. Counsel for the appellant in Wong Keung submitted a letter from the Immigration Department containing a table of sentences for this type of offence committed by Hong Kong residents during the period from 1st January 1990 to 28th February 1991. This showed that there were 18 offenders in the 14 month period but only eight had been sentenced to immediate imprisonment.

9. In his Reasons for Sentence the magistrate said this :

“As to the Honourable Chief Justice’s expressed opinion as to the harshness of the original sentence in WONG Keung it is apparent from the reproduced table of sentences in WONG Keung that his Lordship had in mind the comparative paucity of offenders in 1991.

An examination of statistics for the 12 month period prior to my sentencing of the appellant shows a very different situation. 208 offenders have been convicted in Western Court of offences involving false or falsely obtained passports since July 1992. These are all for offences contrary to section 42 of the Immigration Ordinance. In all but a few cases the offender had also been convicted of making a false representation to an Immigration Assistant. In each case a period of imprisonment between 4 months and 18 months with the terms running concurrently, has been imposed. It has become a prevalent offence. The average sentence for both offences is 9.5 months immediate imprisonment.

There have only been 2 other cases where the prosecution has offered no evidence on the passport charge and proceeded on the false representation charge alone. In neither of these cases was there evidence that the offender knew that information in the passports in question was false. In these particular circumstances the periods of imprisonment were suspended.”

10. As these figures did not isolate Hong Kong residents, another set of statistics has been produced by the Immigration Department for the purposes of this appeal. These show that, out of 97 Hong Kong residents convicted of using or possessing false travel documents in the 27 month period from 1st April 1991 to 30th June 1993, 42 were fined, 31 sentenced to suspended sentences, with or without fine, and 24 to terms of immediate imprisonment.

11. It is clear that the magistrate was correct when he observed that this type of offence has become prevalent since Wong Keung. In the circumstances of this case I was satisfied that his starting point of six months was not wrong in principle or manifestly excessive.