HKSAR v. LUO, BINGHUA

HCMA 240/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 240 OF 2005

(ON APPEAL FROM STCC 1849/2005)

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Before: Deputy High Court Judge Barnes in Court

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J U D G M E N T

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Background

1. The Appellant was convicted on his own plea of one charge of “Using a forged travel document”, contrary to section 42(2)(b) of the of the Immigration Ordinance, Cap. 115 (“1^st charge”); and one charge of “Making a false representation to an Immigration Assistant”, contrary to section 42(1)(a) of the said Immigration Ordinance (“2^nd charge”).

2. The Appellant was sentenced to 12 months imprisonment for the 1^st charge and 8 months for the 2^nd charge. The learned magistrate ordered both sentences to run concurrently, with a total sentence of 12 months.

3. The Appellant appealed against the sentence. After hearing submissions I dismissed the appeal. I gave brief oral reasons at the time and I now reduce my reasons in writing, with elaboration on the background.

Admitted Facts

4. The facts disclosed that the Appellant arrived in Hong Kong via Kuala Lumpur and presented a Korean passport for arrival clearance. He also produced a Korean Identity Card to the Immigration staff. The Appellant was subjected to questioning.

5. Under caution, the Appellant admitted that all the personal particulars recorded on the said passport and identity card, save the photographs affixed, did not relate to him. He admitted he was a Mainlander and the said passport and identity card were arranged by a middleman for him to seek job in Europe.

Grounds of Appeal

6. The only ground of appeal advanced by the Appellant was that he has met some fellow inmates in the prison who had received lighter sentences.

Judgment

7. The fact that another person was sentenced by a different magistrate on a different occasion to a shorter sentence for similar offences (assuming for the moment that that was indeed a fact) is not, by itself, a ground of appeal against sentence. This court has no idea of the circumstances of the offences nor the mitigating factors, if any, advanced by those inmates. This court will only consider whether the sentences passed on the Appellant were proper: see R v Lam Mo-kwong, Cr. App. 175/1992.

8. The learned magistrate has carefully set out the reasons for imposing the sentences. He was fully aware of the fact that the Appellant was in transit. He made reference to relevant authorities and adopted a starting point of 18 months for the 1^st charge and 12 months for the 2^nd. He gave the Appellant the usual 1/3 discount. He then ordered both sentences to run concurrently.

9. The sentences imposed were neither wrong in principle nor manifestly excessive. The appeal is therefore dismissed.

Ms. Mary SIN Pui Ha, Senior Assistant Director of Public Prosecution of Department of Justice for the Respondent

Appellant in person