THE QUEEN v. CHEUNG SHI TSANG

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H E A D N O T E

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Sentence - making false representation to Immigration officer - failure of Immigration Department to co-ordinate cases - discrepancies in sentences passed by same magistrate-fifteen months reduced to four months.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 720 OF 1988

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J U D G M E N T

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1. The appellant pleaded guilty, before Mr O'Keeffe in Western Magistrates Court, to making a false representation to an Immigration Officer, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115. He was sentenced to 15 months imprisonment.

2. At the outset of the appeal, in which the appellant is unrepresented, counsel for the respondent, to whom I am much indebted, produced a schedule of sentences passed on five other residents of China who arrived on the same boat as the appellant and pleaded guilty to the same charge before the same magistrate. None of these men have appealed.

3. The schedule reveals a disturbing state of affairs. Two of these defendants were also convicted of assisting the passage to Hong Kong of unauthorised entrants, for which they received sentences of 12 months imprisonment. They were sentenced to three months concurrent on the charge of aiding and abetting the making of a false representation. Two defendants received four months and one lucky man had his six months sentence suspended for two years. All the sentences were passed within the space of 11 days.

4. From the admitted facts of all six cases the following story emerges: In May this year Lau Lam and Cheung Shingkwong - the defendants who were sentenced to 12 months - together with another man, bought a junk in which they intended to bring sea produce to the Hong Kong market. It then occurred to them that they might make some money on the side by bringing non-seafaring clansmen to Hong Kong "for visiting relatives and sightseeing".

5. The other four defendants were subsequently recruited by Cheung Shing-kwong. False boatman cards, to which their photographs were affixed, were procured through a friend in the commune. On 3rd July the group assembled at the pier, sums varying between $300 and $1,000 were collected from each and the junk set sail for Hong Kong with its cargo of fish and the spurious crew.

6. On arrival next day the ship's papers, including the boatman's cards, were examined by immigration officers, to whom the false representations as to identity were made. All were allowed entry to Hong Kong on a transit basis.

7. After the sale of the cargo, the junk was moored in Yau Ma Tei Typhoon Shelter. The four bogus crew members were told to return to the junk by 11 a.m. on 10th July, when they would return to China. They then went their separate ways.

8. Unfortunately for them, one of their number, Wong Hing-yuen, was stopped by a police officer in Tuen Mun.on 5th July. The police were suspicious about the boatman's card and Wong eventually admitted his true identity. The matter was referred to the Immigration Department and Wong was taken to court on 9th July, when he received a suspended sentence.

9. The other five were subsequently arrested on the junk on different days in the course of the next week. Ho Sau-po and Ngan Lun-po appeared in court on 13th July and were both sentenced to four months imprisonment. This appellant appeared the following day and received 15 months. Finally, on 20th July, the two ringleaders appeared and were sentenced to concurrent sentences of 12 months and three months.

10. So far as the four "tourists" were concerned, there was no mitigation and nothing to distinguish their cases, or the way in which they should have been dealt with.

11. The sentencing discrepancy may be accounted for, in part at least, by the failure of the Immigration Department to co-ordinate the individual cases: Three different Immigration Officers were complainants. The magistrate was not told the whole story until 20th July.

12. Nevertheless the magistrate gives no reasons for sentencing the appellant to 15 months, nor why he had distinguished his case from the others: He says he took into account the factors urged by the appellant, but all the appellant said was that he was aged 40 and was married.

13. This is an unsatisfactory state of affairs. The Immigration Department should in future make an effort to present such cases in a way that will allow a magistrate properly to assess the gravity of the matter as a whole and the sentence that should be passed on each defendant: Magistrates must also take care that such hugely diverse sentences are not passed on defendants whose circumstances do not justify such discrepancy.

14. The appeal is allowed and the sentence varied to one of four months imprisonment.