HKSAR v. LABENA, LENAR ABITONA

HCMA466/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 466 OF 2012

(ON APPEAL FROM FLCC 1436 OF 2012)

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J U D G M E N T

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1.  The appellant pleaded guilty to one charge of “Breach of condition of stay” contrary to section 41 of the Immigration Ordinance, Cap 115, Laws of Hong Kong.

2.  The admitted facts stated that the appellant had arrived in Hong Kong as a visitor on 16 January 1998.  She was allowed to stay until 3 July 1999.  However, she remained in Hong Kong until 25 June 2012 when she was arrested by the police.  Hence the period of her over-staying is almost 13 years. 

3.  After hearing mitigation, the magistrate imposed a term of 10 months.

4.  In considering the sentence, the magistrate stated that the maximum sentence for such offence was 2 years’ imprisonment and he referred to Macrae J’s judgment in HKSAR v Ping Yu, Josie Eblogen, HCMA634/2011 stating that:

“It has been made clear by the Court of Appeal in HKSAR v Tiongson Patricia Manalad, CACC268/2001 that there is no tariff for these offences. Sentences can range from a fine to 2 years’ imprisonment in appropriate cases. The principal considerations are the length of the period of overstay and whether any employment has been undertaken during such period...” [own emphasis]

5.  The magistrate relied on HKSAR v Yeung Sam Yuen, HCMA596/2011, a case with similar circumstances, in adopting the starting point of 15 months.  He duly gave the one-third discount for the appellant’s plea, but he could find no other grounds to further reduce the sentence.  Hence, the 10 months’ sentence.

6.  The appellant was not represented at the appeal hearing.  She only stated that she wanted to go home sooner and that she was afraid but had no idea how and where to surrender herself to the authorities.

7.  As I pointed out when dismissing the appeal, in view of the length of the overstay, it could not be argued that the sentence was too severe, it was in fact on the lenient side.  I could see nothing wrong in both the length nor about the principle regarding this sentence. 

8.  I had therefore dismissed the appeal.