OVERVIEW
Making a false representation to an immigration officer is a very serious criminal offence under section 42(1)(a) of the Immigration Ordinance (Cap. 115). It targets individuals who lie or provide deceptive information to immigration authorities to secure entry, extend visas, or obtain legal identity status.
The maximum statutory penalty upon conviction is a fine of HK$150,000 and 14 years' imprisonment.
STATUTORY PROVISIONS
Section 42 of the Immigration Ordinance (Cap. 115)
The relevant part of the current statutory provision states:
Section 42(1)
Any person who makes or causes to be made—(a) to an immigration officer, immigration assistant or any other person lawfully acting under or in the execution of Part IB, II, III, IV or VIIC of this Ordinance; (b) in any document furnished to an immigration officer or immigration assistant pursuant to this Ordinance or a requirement made thereunder; or (c) for the purpose of obtaining, whether for himself or any other person, any travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card, any statement or representation which he knows to be false or does not believe to be true shall be guilty of an offence.
ELEMENTS OF THE OFFENCE
False Representation
A false statement or representation must be made to a person acting under the Ordinance in the relevant official context.
The mental element
The accused must know it is false or not believe it to be true. The statement must be objectively false in a material particular (for example, a false statement about the person's full name, place of birth, marital status, or true purpose of entry).
SENTENCING
Sentence depends on the nature of the False Representation
Conviction of this offence commonly results in a custodial sentence. In HKSAR v Bodomo, Marissa Flores ([2005] 4 HKLRD 285; HCMA 343/2005), the Court reviewed two lines of sentencing authority and emphasised that the appropriate sentence depends on the nature and consequences of the false representation.
- A substantially heavier sentence is appropriate where the offence involves the possession or use of a forged travel document, has an international dimension, or enables entry that may adversely affect Hong Kong's employment market or social conditions. A connected false representation should be treated with comparable seriousness.
- A lower starting point may be appropriate where the case involves false information alone and does not carry those aggravating features. Bodomo should therefore not be treated as establishing one fixed tariff for every section 42 offence.
- Where several offences form part of the same transaction, the court must consider concurrency and the totality of the resulting sentence. Separate or repeated acts may nevertheless increase the overall criminality.
- A guilty plea ordinarily attracts the applicable sentencing discount, but it does not displace the need for deterrent punishment where the circumstances justify it.
- Forged travel documents: In The Queen v Yu Wing-wut (CA 346/1984), the Court of Appeal held that 18 months' imprisonment was appropriate following a guilty plea. In HKSAR v Chu Man [1999] 1 HKC 189, the court imposed 12 months' imprisonment in a forged-passport transit case and noted a range of six to nine months in less serious transit cases.
- False representations connected with false travel documents: In HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, 12 months' imprisonment on each of two charges was held appropriate. In HKSAR v Yim Lee-kuen (HCMA 1187/2002), 18 months' imprisonment on each of two charges was held appropriate.
- False representations without false travel documents: In HKSAR v Saranilla Corazon C (HCMA 944/1997), a six-month sentence was reduced to four months on appeal. HKSAR v Mijares Marriza G (HCMA 1061/1997) imposed four months on each charge; HKSAR v Muhammad Yousaf (HCMA 440/1998) reduced the false-representation sentence to four months; and HKSAR v Muhammad Waheed (HCMA 1179/2004) upheld four months as consistent with sentencing practice.
These figures reflect the authorities considered in Bodomo and are not a fixed tariff for every section 42 case. The court must sentence according to the precise deception, documents used, purpose, consequences, number of offences, plea, and all other relevant circumstances.
Maximum Penalty
- Under section 42 of the Immigration Ordinance (Cap. 115), the maximum penalty upon conviction is a fine of HK$150,000 and 14 years' imprisonment.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.