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THE QUEEN v. LI SUI PUI

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35485-EN-1991-08-06

THE QUEEN v. LI SUI PUI

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HCMA000479/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 479 OF 1991

_________

BETWEEN

	THE QUEEN	Respondent
	AND
	LI SUI PUI	Appellant

________

Coram: Hon. Barnes, J. in Court

Date of Hearing: 6 August 1991

Date of Delivery of Judgment: 6 August 1991

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

JUDGMENT

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

1. The appellant was convicted in the magistrate's court on two offences, one of making a false representation to an Immigration officer, contrary to Section 42 (1) (a) of the Immigration Ordinance, and the other of Counselling or procuring the furnishing of false particalars to a Registration Officer in contravention of the provisions of regulations made under the Registration of Persons Ordinance. In respect of the 1st offence, the Magistrate sentenced him to imprisonment for 9 months, and in respect of the 2nd to imprisonment for 6 months, and ordered that the sentences run consecutively.

2. The conduct of the appellant in relation to the 1st offence has been related in the judgment given in respect of his appeal against conviction. The 2nd offence arose in this way: when the appellant presented his travel document to an Immigration Officer at Lowu in commission of the 1st offence, he was told by the Immigration Officer to go to the appropriate office for the purpose of obtaining a Hong Kong Identity Card. As the appellant's travel document indicated that he was an eleven year old boy, he needed for the purposes of obtaining his identity card, the assistance of an adult. It was for that purpose that he counselled and procured the person named in the 2nd charge to furnish the false particulars, the subject of that charge. The person who was counselled and procured was charged with the substantive offence of furnishing the false particulars, and was jointly tried with the appellant and at the conclusion of the trial convicted of the offence.

3. In sentencing that offender, the magistrate took into account his clear record and imposed a sentence of 6 months but ordered that it be suspended. In dealing with this appellant in respect of the 2nd offence, the learned Magistrate acted on the basis that the appellant had a conviction for an Immigration offence in 1985 and said, "this was relevant to determine the amount of discount to which he would be entitled as compared with the person with a clear record."

4. At the time the Magistrate sentenced the appellant he had every reason to believe that he did have a previous conviction for a similar offence, because a criminal record form shoring such particulars was put before him. It has been revealed to me, however, that criminal record form is misleading in that, although the appellant had been here in 1985 as an illegal immigrant he was not prosecuted, but was immediately repatriated to China.

5. It seems to me that if the learner Magistrate had known that he would not have imposed a sentence of 6 months imprisonment. The total sentences imposed on the appellant amounted to 15 months of custody. I do not think that there was anything wrong with the sentence of 9 months imposed in respect of the 1st offence nor do I think that the Magistrate was wrong to have imposed a consecutive sentence, although in the circumstances it may also thought that he could not have been criticised had he imposed a concurrent sentence. Be that as it may it seems to me that, had the Magistrate known what I know he would certainly not have a sentence of 6 months to run consecutively with the 9 months.

6. I, accordingly, allow the appeal to the extent the sentence of 6 months on the 2nd charge be reduced to 3 months, and the appeal is allow to that extent.

(E.C. Barnes)
Judge of the High Court

Representation:

Mr. A. Sham, S.C.C. for Crown.

Mr. A. Wong (Chan & Kong) for Appellant : LI Sui-pui

HCMA000479A/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 479 OF 1991

__________

BETWEEN

	THE QUEEN	Respondent
	AND
	LI SUI PUI	Appellant

__________

Coram: Hon. Barnes J. in Court

Date of Hearing: 6 August 1991

Date of Delivery of Judgment: 6 August 1991

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

JUDGMENT

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

1. The appellant pleaded not guilty in the Magistrate's court to two charges, one of making a false representation to an Immigration Assistant lawfully acting under Part 11 of the Immigration Ordinance, an offence contrary to Section 42 (1) (a) of the Immigration Ordinance, and the other of Counselling or procuring the furnishing of false particulars to a Registration Officer, an offence under the provisions of the Registration of Persons Ordinance.

2. He was convicted on both charges. On this appeal, he appeals against his conviction on the 1st Charge only. fir. Alexander Wong of Counsel has advanced five major grounds of appeal with substantial particulars in support of each ground. Having had the advantage of looking at his perfected grounds of appeal beforehand. I suggested that one particular ground be dealt with first, because if I were against him on that ground, the other grounds would automatically fail. Mr. Wong agreed with that view and tile result was that submissions have been limited to this particular ground.

3. To put this ground in its context, the full wording of the charge need to be set out. The particulars read as follows :

"LI Sui pui you are charged that on the 6th November 1990 at Lowu Terminal in Hong Kong, you did Make a representation knowing the same to he false or not believing the same to true, to an Immigration Assistant lawfully acting under Part II (Immigration Arrival Examination) of the Immigration Ordinance in that you represented that you were LI Hiu-yeung born on 3th May 1979."

4. The evidence was that the appellant enroute to Hon Kong from China presented his travel documents to an Immigration Assistant at the Lowu Terminal. The travel document he presented stated his name e LI Hiu-yeung. and his date of birth to be the 8th May 1979. Pausing there, it is to be noted, as the Magistrate noted, that if that representation were true, then the 21 year. old appellant was representing himself as an eleven year old boy. In the course of the appellant's evidence before tae learned Magistrate, he said this in evidence-in-chief :

"I know when I was born, I was born on 5th April 1969. The documents says I was born on 8th May 1979. When it was given to us, we already saw the birth date was wrong, but my maternal uncle said, according to the rule, a person would not be granted permission to come, if he or she was more than 15."

A little later, he said:

"Apart from the date of birth the particulars in this document are true."

5. It is Mr. Wong's submission that since the charge alleges that the false representation was that the appellant was a person named LI Hiu-yeung, who was born on the 8th May 1979 that the prosecution had to prove (a) that he was not named LI Hiu-yeung, and (b) that ire was not born on tare 8th May 1979, that a failure to prove both those matters, meant a failure to prove the allegation is the charge, and therefore a failure to prove the charge which was brought against him, and therefore he should not have been convicted.

6. The prosecution contention is that, if one part of a dual representation be shown to be false then the representation is shown to be false. I agree with the prosecution proposition. It seems to me that it was one representation which the appellant was making, namely are presentation as to his identity.

7. The representation was that he was an eleven year old boy named X. And in fact he was a 21 year old man. I thin : that the learned Magistrate was right to say although this did not form the basis of his decision because he did come to the conclusion that the representation as to name was false but I think he was right to hold that proof of falsity regarding the date of birth was sufficient to prove that the representation alleged in the charge was false. Having come to that conclusion there is no point in considering the other grounds of appeal.

8. Accordingly, therefore, the appeal against conviction cannot succeed and must be dismissed.

(E.C. Barnes)
Judge of the High Court

Representation:

Mr. A. Sham, S. C. C. for Crown.

Mr. A. Wong (Chan & Kong) for Appellant : Ll Sui pui.