HKSAR v. BUI THI TUYET NHUNG

HCMA 593/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 593 OF 2002

(ON APPEAL FROM KTCC 3185/2002)

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistrate's Court to three charges of making a false representation to an immigration officer, contrary to Section 42(1)(a) of the Immigration Ordinance, Cap. 115, and one charge of using a false travel document, contrary to Section 42(2)(b) of the Immigration Ordinance, Cap. 115.

2. On 10 September 2001, the Appellant was arrested by Police Officers in connection with another offence. Upon investigation, they found that the Appellant had previously come to Hong Kong three times in the year 2000, using Vietnamese passports with three different names. Under caution, the Appellant admitted her real name and also she admitted that she had been deported from Hong Kong twice under her true identity in 1998 and 1999. Because of the prohibition for her coming back to Hong Kong, she therefore acquired the Vietnamese passport using false identity, and her purpose is to come to Hong Kong to earn money. She therefore came to Hong Kong using those passports and on the last occasion when she came to Hong Kong on 11 May 2001, she was arrested by the Police in connection with a criminal offence. She jumped bail and sneaked back to Vietnam. Then she came back on 9 September 2001 and falsely represented that she was another person.

3. The learned Magistrate, in assessing sentence, had very properly considered all the authorities as to the level of sentences that is appropriate in this case, and after a lengthy consideration, he decided that on the 1st charge, the proper sentence should be 6 months and on the 2nd, 3rd and 4th charges, it should be 8 months each. He then went on to consider the totality principle. Although these offences were separate offences and should be consecutive, in view of the totality principle, he then decided to make them partly consecutive and partly concurrent. And he had also considered the fact that the Defendant had been in prison for her other offences.

4. The Appellant's ground of appeal was that she wanted an early release in order to return to Vietnam to look after her mother and her two young children as her husband is a drug addict. The learned Magistrate in considering the sentences had also considered the family background of this Appellant. The Appellant knew full well that she was committing offences by coming to Hong Kong using false identity and would expect that when arrested, she would have to serve terms of imprisonment. As I can see from her criminal record, she had five previous convictions for which she had been imprisoned.

5. It has been said by the Court of Appeal and I repeat here that a reduction of sentence on humanitarian grounds will only be given in exceptional circumstances. There are no exceptional circumstances here. So the appeal is dismissed.