HKSAR v. ABARA, REMEDIOS VICTORIA AGUINALDO

HCMA 409/2022

[2023] HKCFI 300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 409 OF 2022

(ON APPEAL FROM STCC 2401 OF 2022)

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JUDGMENT

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1.  The Appellant was convicted on her own plea of one charge of “Breach of Condition of Stay”, contrary to section 41 of the Immigration Ordinance, Cap 115, and was sentenced to 6 months’ imprisonment.

2.  The Appellant appealed against that sentence on the grounds that she considered it to be too severe.

3.  In brief, the facts were that the Appellant arrived to work in Hong Kong as a domestic helper in 2009. Her employment contract was terminated in December 2010, but she failed to depart. She finally surrendered to the Immigration Department on 13 June 2022. She had overstayed for a total of 11 years and 5.5 months.

4.  When she was before the learned Magistrate, she had said that she surrendered to the Immigration Department because she wanted to go back to the Philippines because of her sick father.

5.  As Mr Lau submitted, there is no tariff for this type of offence. The learned Magistrate had to take into account the period of the overstay and whether any employment was undertaken during that time.

6.  The learned Magistrate having considered the facts in the case, then adopted a starting point of 12 months’ imprisonment, giving the Appellant 1/3 discount for her plea and further reducing the sentence by 2 months for her surrendering to the Immigration Department.

7.  The learned Magistrate also rightly considered that the ill health of her father was not a factor in mitigation because when the Appellant decided to overstay, her father was already in his 70s.

8.  Mr Lau, had very helpfully referred this court to different cases where the courts have handed down different sentences in relation to this types of offence. In the case of HKSAR v Atter, Ashok[1]in 2022, serious illness of a family member does not generally amount to a humanitarian ground for reduction of sentence, except where it is exceptional.

9.  So having looked at all these previous cases, and the sentences there, I do not consider that the sentence of 6 months is manifestly excessive or wrong in principle.

10.  So the appeal is dismissed.