HKSAR v. ZENG YOU SHUI

HCMA1074/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1074OF 2006

(ON APPEAL FROM STCC 8312 OF 2006)

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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 the sentence of 12 months imprisonment imposed upon him by Mr Jenkins at Shatin Magistrates’ Court on 11^th September this year following his plea of guilty to one charge of making a false representation to an Immigration Assistant, lawfully acting under or in execution of Part II of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance, Cap.115.

2.  The appellant has previously applied unsuccessfully to persuade the magistrate to review his sentence.

3.  The appellant admitted that he had presented a Chinese two-way permit in the name of another person Zeng You-quan, but bearing his photograph, when he arrived at the Immigration Control Point at Lo Wu on 17^th August this year seeking to enter Hong Kong.  He had business in Hong Kong, but had previously been refused permission to land in Hong Kong on several occasions by the Immigration authorities.  In order to conceal his previous unsuccessful attempts he had used the travel permit in question which had borne a false identity.

4.   The grounds of appeal are that the starting point of 18 months adopted by the learned magistrate was too high and in all the circumstances the sentence of 12 months’ imprisonment was manifestly excessive.

5.  In his reasons for sentence, the magistrate referred to the appellant’s family circumstances and the fact that he had business in Hong Kong and had resorted to this offence because he had been refused permission to land in Hong Kong by the Immigration Department.

6.  The magistrate stated that he relied upon the authority of the judgment Deputy Judge McMahon (as he then was) in HKSAR v Yim Lee-kuen, HCMA 1187 of 2002, a judgment which had been followed in a number of cases on appeal from the magistrate’s court.

7.  The magistrate said this :

“I adopted Deputy Judge McMahon’s suggested starting point of 18 months’ imprisonment of a charge and gave the defendant the customarily one-third discount resulting in a 12 month prison term.”

8.  Mr Raymond Fong for the appellant does not suggest that the judgment of Deputy Judge McMahon was wrong in principle, but argues that the magistrate wrongly interpreted the judgment and the sentencing guidelines of 18 months’ imprisonment as a starting point for this offence.  He argues that an 18-month starting point is only appropriate where there are aggravating circumstances such as previous unlawful entry.

9.  It is worthwhile to bear in mind what Deputy Judge McMahon said in Yim Lee-kuen.

“It seems to me that there is even less justification for distinguishing factually between persons gaining entry to Hong Kong by way of a falsified passport and those gaining entry by way of a false two-way permit.  Both are travel documents.  Both are necessarily used, as in the present case, to allow the defendant to pretend to be a person he or she is not and so deceive the immigration officer into allowing him entry.

It may be true that the production of a false passport is arguably the more serious offence, as such a document purports to extend the protection of another sovereign country to the individual concerned, whereas a two-way permit goes not much beyond the purpose of permitting the crossing of a border.  Balancing that argument, however, is the important fact that the border involved is that which is most vulnerable to illegal crossings into Hong Kong.  It seems to me that the use of a false two-way permit in such circumstances is certainly no less serious than the possession of a false passport.”

10.  Insofar as the actual level of sentencing is concerned, Deputy Judge McMahon said this :

“To summarize the: offenders who come to Hong Kong illegally and remain here without authority, contrary to section 38 of the Ordinance, are generally after plea (my emphasis) liable to a sentence of 15 months’ imprisonment.  All persons in most conceivable factual situations who present a forged or false travel document and so gain entry to Hong Kong would be in breach of section 38 of the Ordinance.  Such persons would if in possession of or having used a forged passport, be liable to a penalty of 15 to 18 months’ imprisonment after plea (my emphasis) if prosecuted pursuant to section 42(2) of the Ordinance.  Why then, given this, should there be a different level of sentencing in respect of persons using forged or false two-way permit to illegally penetrate Hong Kong’s most vulnerable border?”

11.  Examples of where 18 months’ imprisonment were upheld after a plea of guilty in respect of possession of a single forged travel document, contrary to section 42(2)(c)(i) of the Immigration Ordinance are R v Wong Wai-pui MA796 of 1987 and the R v Yu Wing-kut MA346 of 1984, a decision of the Court of Appeal.

12.  Insofar as the case before the magistrate in Yim Lee-kuen  was concerned, the magistrate had adopted a starting point of sentence in respect of each offence of 18 months’ imprisonment and reduced it to 12 months’ after plea.  Deputy Judge McMahon said this :

“In my judgment, depending on the circumstances of the case, starting points of sentence of 18 months’ imprisonment are certainly justified in the circumstances of the present offences involving the production of a false two-way permit to gain entry to Hong Kong.  Indeed on the authorities, starting points of sentence even higher than that will be justified.” 

13.  It can be seen from the passage to which I have referred that Deputy Judge McMahon was not saying that 18 months’ imprisonment represented the top of the range insofar as the usual starting points are concerned or that 18 months’ was his “suggested starting point” as the magistrate in the present case stated.

14.  Deputy Judge McMahon specifically stated that a higher starting point would have been justified on the authorities.  The case of R v Wong Wai-pui and R v Yu Wing-kut where sentences of 18 months’ imprisonment after plea were upheld support what he said.  There is no justification for Mr Fong’s argument that a starting point of 18 months’ imprisonment is only justified where there are aggravating circumstances such as previous unlawful entry.

15.  In the present case, the sentence of 18 months’ imprisonment was adopted as a starting point, not as the appropriate sentence after plea.  12 months’ imprisonment was imposed after plea on the appellant, a man who had repeatedly attempted unsuccessfully to gain entry to Hong Kong using his own identity and then had resorted to deceit to achieve his purpose.

16.  In my view, the sentence imposed was, if anything, lenient.  I dismiss the appeal.