HKSAR v. ESCIO, GALIZIANO KREL

HCMA374/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 374 OF 2007

(ON APPEAL FROM STCC 2098 OF 2007)

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J U D G M E N T

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1. This is an appeal by the appellant against sentences totalling 15 months’ imprisonment imposed upon him by Mr Jenkins sitting at Shatin Magistrates’ Court on 9 March 2007.  In his Notice of Appeal the appellant alleges that his sentences were too severe. 

2. The appellant faced two charges 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 two charges of making a false representation to an Immigration Assistant, contrary to section 42(1)(a) of the Ordinance.  He pleaded guilty to all four charges.

3. On 6 March 2007, the appellant was intercepted by the police in Wanchai on suspicion of breaching his condition of stay.  A subsequent record check revealed that he had used a different identity to enter Hong Kong previously.  Under caution the appellant admitted that he had been repatriated to Manila in July 2006 after he had been refused permission to land.  Following that, he had acquired the false passport which is the subject matter of Charges 1 and 3 in order to facilitate his entry to Hong Kong.  The false passport bore the appellant’s own photograph but bore a false name and false particulars.

4. Charges 1 and 2 relate to the appellant’s use of the passport on 20 October 2006.  Charges 3 and 4 relate to his use of the same passport for the same purpose on 5 March 2007.

5. The magistrate imposed sentences of nine months’ imprisonment on Charges 1 and 2 and ordered them to run concurrently.  He imposed the same sentences on Charges 3 and 4 which he ordered to run concurrently but he ordered six months of those sentences to run consecutively to the sentences he had imposed on Charges 1 and 2.  The total sentence was therefore 15 months’ imprisonment.

6. The magistrate arrived at his original sentences of nine months’ imprisonment by adopting a starting point of 13½ months’ for all four charges which he discounted by one-third to reflect the appellant’s plea of guilty. 

7. Today the appellant has read me a letter and has told me that he very much regretted his actions and he would never do the same thing again.  He said he committed the offences because his friends had informed him, following his deportation from Hong Kong in July 2006, that he would not be able to enter Hong Kong again if he used his own name.  He said he very much wanted to be reunited with his family in the Philippines. 

8. In his Reasons for Sentence, the magistrate referred to the starting point of 13½ months’ imprisonment as being perhaps generous in hindsight.  In my view, it was very generous.  A starting point of 27 months, double that adopted by the magistrate, would have been justifiable on the facts of this case : see HKSAR v. Rakesh Kumar Sthapak [2005] 1 HKLRD 643.  In my view, it was perfectly proper to order that six months of the sentences imposed in respect of the offences committed on 5 March 2007 should run consecutively to the sentences imposed in respect of the offences committed on 20 October 2006.  

9. In such circumstances, I see no grounds whatsoever for interfering with the sentences imposed by the magistrate which I already consider generous.  Accordingly, I dismiss the appeal.