HKSAR v. BATSAIKHAN, Munkhsaikhan

HCMA 404/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 404 OF 2006

(ON APPEAL FROM SHATIN MAGISTRACY 3338/2006)

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J U D G M E N T

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1.  You appeal concurrent sentences of 10 months imprisonment in respect of offences of using a false travel document contrary to section 42(2)(b) of the Immigration Ordinance and making a false representation to an immigration assistant under section 42(1)(a) of the same Ordinance.

2.  These offences came to light when you were due to be returned to the mainland after serving a four-month prison sentence imposed upon you consequent upon your conviction for an offence of going equipped for stealing.  When repatriation arrangements were being made, it was established that you had assumed your younger brother’s identity and obtained a travel document in order to come to Hong Kong without your previous criminal record being detected.

3.  The magistrate correctly took a starting point of 18 months imprisonment, after trial, in respect of each of these offences following the decision of Deputy High Court Judge McMahon, as he then was, in HKSAR v. YIM Lee-kuen HCMA 1187/2002.  The magistrate then reduced that starting point by three months to reflect the fact that these charges “should have been dealt with at the same time” as you had been dealt with for the offence of going equipped for stealing: had you invited the offences to the attention of the prosecuting authorities at that stage then that observation would be correct but you chose to persist in your attempt at deception.

4.  The reduced starting point was then discounted by one third for your plea of guilty.  The magistrate correctly took the view that there was no other mitigation available to you.  He ordered that the sentences be served concurrently with one another.

5.  The appeal is dismissed and the sentences confirmed.