HKSAR v. SINGH GURPARTAP

HCMA1007/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1007 OF 2006

(ON APPEAL FROM KCCC 3692 OF 2006)

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J U D G M E N T

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1. The appellant appeals against the sentences totalling 22 months’ imprisonment imposed upon him by Mr B. McNair on 12 September this year for four offences, one charge of criminal damage (Charge 1), one charge of unlawful remaining (Charge 3) and two charges of making a false representation to an Immigration Assistant, contrary to section 42(1)(a) of the Immigration Ordinance, Cap.115.

2. On the charge of criminal damage (Charge 1), he was sentenced to one month’s imprisonment.  On the charge of unlawful remaining (Charge 3), he was sentenced to 15 months’ imprisonment to run consecutively to the sentence on Charge 1.  On the two charges of making a false representation to an Immigration Assistant (Charges 4 and 5), he was sentenced to six months’ imprisonment on each charge to run concurrently with each other but consecutively to the sentence on Charge 3 making a total of 22 months’ imprisonment.

3. He does not complain about the sentence imposed on the charge of criminal damage (Charge 1).  That charge arises from an incident in the early hours of the morning of 16 June this year at the junction of Mody Road and Blenheim Avenue in Tsimshatsui.  The appellant was having an argument with his friends in the street.  The appellant told a taxi driver to drive his taxi away.  When the taxi driver ignored him the appellant kicked the rear fender of the taxi thereby damaging it.

4. The same date, 16 June 2006 was the date he was alleged to have committed the offence of unlawful remaining.  It was admitted by his counsel in mitigation that he had sneaked into Hong Kong illegally by boat and approached the UNHCR for asylum.  He told the police that the date of his entry on that occasion was in April 2006.  There was no immigration record of such entry.

5. Charges 4 and 5 arise from the fact that he used a false passport bearing his photograph but the name “Singh Hardial” which was not his name in order to gain entry to Hong Kong on 19 March 2002 and 11 August 2004.

6. In mitigation, it was alleged that the appellant was involved in the Punjabi independence movement and that he and other members of his group are the subject of persecution by the Indian authorities.  He believed that he would be killed if he did not escape from India.  For this reason he could not apply for a legitimate passport from the Indian authorities and therefore had to obtain a forged one.

7. He ended up living in Shenzhen and would regularly deliver items to Hong Kong.  His entering Hong Kong using a forged passport on 19 March 2002 and 11 August 2004 were two of these instances.

8. It was alleged that in 2004 the person who supplied him the false passport took it back.  Thereafter there came a time when he learnt that people in a similar situation were claiming asylum in Hong Kong.  That is why he sneaked into Hong Kong in April 2006 and had approached the UNHCR to apply for asylum three days after arriving.  Before this court he has said that he arrived in Hong Kong in the early hours of 15 April by boat and first went to the UNHCR on 18 April.

9. The appellant alleges that the sentences imposed by the magistrate were too severe.  In particular, he reiterates that he was the subject of persecution by the police in the Punjab as a result of his support for human rights.  He also argues that his sentences should have run concurrently. 

10. In my view very little weight should be attached to the allegation of political persecution and the desire to seek asylum when it comes to the sentences for these offences.  It clearly has no bearing on the offence of criminal damage.   It has very little bearing on the charges of making a false statement to an Immigration Assistant. 

11. The appellant was on the admission made on his behalf by counsel regularly travelling from Shenzhen where he was living to Hong Kong to make deliveries.  It is apparent that on one of those visits he committed the offence of importing goods to which a forged trademark was applied.  No necessity or concern for his safety compelled him to make these visits.  It appears that they were undertaken for financial reasons.  Each time he entered he made a false representation as to his identity.  The sentences imposed by the magistrate for these offences were lenient.

12. Insofar as the offence of unlawful remaining is concerned, I am satisfied that the circumstances did not warrant a departure from the usual sentence of 15 months for this offence which the magistrate imposed.

13. It is only the Hong Kong authorities that can grant permission to visitors to enter and remain in Hong Kong.  This was not a case where the appellant having sneaked into Hong Kong immediately surrendered himself to the Hong Kong authorities and sought asylum.  He waited three days and then went not to the Hong Kong authorities but to the UNHCR.  Indeed, he admits that he made no attempt to notify the Hong Kong authorities of his presence before his arrest on 16 June.  He claims that he intended to do that later after he had been interviewed by the UNHCR in August.                     Furthermore, he had visited Hong Kong by using unlawful means on at least two previous occasions without seeking to claim asylum.

14. I am satisfied that each of the sentences was fully justified.  I am also satisfied that the magistrate was justified in ordering that the sentences on Charges 1 and 2 run consecutively to each other and that the sentences on Charges 3 and 4 run concurrently with each other but consecutively to the other sentences.  These are completely unconnected matters.  Consecutive sentences were justified. 

15. I dismiss the appeal against sentence.