Hong Kong Judgment

Court of First Instance

HKSAR v. ZENG CUIPING

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The magistrate's choice of a starting point of 18 months reduced by one third for a guilty plea to produce concurrent 12‑month sentences was within acceptable sentencing practice and not susceptible to appellate interference; the appeal is dismissed.

Court disposition

Appeal dismissed; sentences confirmed

Orders

  • Appeal dismissed
  • Sentences of 12 months imprisonment on each count confirmed
  • Sentences to be served concurrently

02

Material facts

Parties

HKSAR

Respondent Counsel: Ms Janice Kwan, Government Counsel, Department of Justice

ZENG Cuiping

Appellant Counsel: Appellant in person

Amounts and remedies

  • Starting Point Sentence Length: months 18
  • Final Sentence Length After Reduction: months 12

03

Procedural history

  1. Posture

    Criminal Appeal (magistracy Appeal) / Judgment on Appeal (court of First Instance)

04

Questions and positions

Legal issues

Party arguments

Applicant
Appellant argued the sentence was excessive and sought further reduction based on family misfortunes and other personal mitigating circumstances.
Respondent
HKSAR submitted the sentences were appropriate and in accordance with current sentencing practice; there was no further mitigation warranting reduction; the magistrate retained discretion to order consecutive time but chose not to and that decision should not be interfered with.

05

Court’s reasoning

  1. 01

    Immigration Ordinance, Cap.115 s.42

    Use, possession and making false travel documents and false representations to immigration officers are offences under section 42 of the Immigration Ordinance

  2. 02

    Sentencing practice/common law

    Sentencing starts with an appropriate starting point and guilty pleas attract a reduction (one third in this case) in accordance with sentencing practice

  3. 03

    Principles of appellate review and sentencing discretion

    The sentencing court has discretion to order concurrent or consecutive sentences and appellate courts will not interfere absent demonstrable error

06

Ratio, limits and disposition

Ratio decidendi

The magistrate's choice of a starting point of 18 months reduced by one third for a guilty plea to produce concurrent 12‑month sentences was within acceptable sentencing practice and not susceptible to appellate interference; the appeal is dismissed.

Obiter and limits

  • The magistrate could have viewed the commission of the third offence as an aggravating feature and ordered part of that sentence to be consecutive but chose not to do so.
  • The family misfortunes occurred before the appellant came to Hong Kong and did not justify further reduction.

Court disposition

Appeal dismissed; sentences confirmed

  • Appeal dismissed
  • Sentences of 12 months imprisonment on each count confirmed
  • Sentences to be served concurrently

Source and reliance status

Court of First Instance · 14 February 2007

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Judgment reading view

Judgment text

The complete available source text.

Source document

Court of First Instance

Judgment· 14 February 2007

HKSAR v. ZENG CUIPING

bjbj HCMA 72/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 72 OF 2007 ____

HKSAR and ZENG Cuiping ____ Before: Hon Wright, J., in Court Date of Hearing: 14 February 2007 Date of Judgment: 14 February 2007 ___

JUDGMENT ___ The appellant appeals concurrent sentences, on pleas of guilty, of 12 months imprisonment for using a false travel document contrary to s. 42(2)(b) of the Immigration Ordinance, Cap. 115, making a false representation to immigration assistant contrary to s. 42(1)(a) of the same Ordinance and possession of a false travel document contrary to s. 42(2)(c)(i) of the same Ordinance The first two offences arose when the appellant used a false two-way Chinese permit to enter Hong Kong on 15 October 2006: the permit bore her photograph but the personal particulars of another. The third charge arose when she was stopped on entry to Hong Kong on 2 December 2006 and the false travel document previously used was found in her possession. She admitted to the offences committed on the earlier occasion when questioned. The appellant pleaded guilty to each of the charges. The magistrate took a starting point of 18 months imprisonment which he reduced by one third for the plea. The family misfortunes which the appellant relates today, if true, occurred before she came to Hong Kong. There were no further mitigating features personal to the appellant or the circumstances of the commission of the offence which justify a further reduction in sentence. The sentence is in accordance with current sentencing practice in respect of the individual offences. However, the Magistrate

would have been justified in viewing the commission of the third offence as an aggravating feature and ordering that a portion of that sentence be served consecutively to the sentences on the first two charges. He decided not to do so. I do not propose to interfere with the appellant s good fortune. The appeal is dismissed and the sentences are confirmed, as is the order that they all be served concurrently with one another. (A R WRIGHT) Judge of the Court of First Instance High Court Ms Janice Kwan, Government Counsel of the Department of Justice, for the HKSAR Appellant in person.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Immigration Ordinance, Cap.115 s.42(2)(b)

Legislation

Legislation referenced in the available case record.

Immigration Ordinance, Cap.115 s.42(1)(a)

Legislation

Legislation referenced in the available case record.

Immigration Ordinance, Cap.115 s.42(2)(c)(i)

Legislation

Legislation referenced in the available case record.

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