R. v. GURUNG MOHAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 195 OF 1996

--------------------------------

-------------------------------

----------------------

J U D G M E N T

----------------------

1. This is an appeal against the sentences imposed by Mr. White sitting at Western Magistracy on 6 January 1996. The Appellant faced two charges. He pleaded guilty to each, firstly making a false representation to an Immigration Officer and secondly using an unlawfully obtained travel document. In brief, the Appellant had purchased a false passport from a syndicate in Nepal for the purpose of coming to Hong Kong to find work. The offences were committed when he attempted to use the document in question.

2. The sentence imposed was one of 12 months' imprisonment upon each charge to run concurrently. It is clear that the learned Magistrate took 15 months' imprisonment as his starting point, relying on Wong J.'s judgment in R. v. Javed Asif and another, Magistracy Appeal No. 1770 of 1990. In some circumstances that might well have been right but, in a very responsible attempt to ensure that all the relevant case law was put before me, the Respondent has brought to my attention a series of other cases beginning with R. v. Bhagwant Singh Padda, Magistracy Appeal No. 1447 of 1988. That appeal, which was similar to this, was allowed and the sentence was reduced from a total of 18 months to nine months' imprisonment. Bewley J.'s judgment encompassed a wide review of sentencing policy in this regard. Subsequent cases indicate that the tariff in recent times seems to be in the range of six to nine months, relying as they do, on the Bhagwant Singh judgment.

3. I have no doubt at all that the learned Magistrate believed, when he imposed the sentence of 12 months, that he was sentencing the defendant to a lighter sentence than the normal. If he had been provided with the cases I have been shown this morning, which he did not have the benefit of seeing, I think he would have imposed a lesser sentence. For the sake of the record I should say that the Magistracy Appeals to which I have been referred are No.1241 of 1995, 1242 of 1995 and 1245 of 1995.

4. I am quite satisfied that from first to last this Applicant has been remorseful, there has been no attempt to excuse what he did and his letter in mitigation only goes to confirm this. I take the view, adopting the approach of the learned Magistrate, that his sentence should be at the lower end of the range and, on both charges, the sentence is reduced to six months to run concurrently. This means that the appeal is allowed and the sentence is halved.