HKSAR v. LUTFIAH IPMAWATI

HCMA155/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. HCMA 155 OF 2005

(ON APPEAL FROM ESCC 516 OF 2005)

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J U D G M E N T

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1. In this case, the appellant appeals against her sentence of 4 months’ imprisonment.  She pleaded guilty in front of the Principal Magistrate at Eastern.

2. She had gone into some commercial premises, went to a cashier counter and when no one was looking, stole a handbag from behind it.  The police came upon her going through it on some stairs.  She confessed all and took them back to where she had taken it.  She pleaded guilty.  The magistrate took a 6 months’ starting point, and reduced it for her plea.

3. The reason she gave for doing it was that she had sent all her money off to Indonesia, she being a foreign domestic helper here, because her father was suffering from cancer there and needed money for an operation.

4. Let me say immediately there is nothing wrong with the sentence of 4 months.  The only question that arises today is whether I should reduce it very slightly to recognise some humanitarian grounds which have been investigated before me.  Those humanitarian grounds are based upon the condition of the father.

5. There is nothing to support the assertions made by the appellant, and I have questioned her quite closely about the situation.  I do not think she is making it up.  I think if she was making it up, her story would have come across much more prepared and pat.  Because of the difficulties of communication, exacerbated by her being locked up since 31 January, the position really is that all she can say is that he is seriously ill; the mother cannot cope; money is needed for the operation and she does not really know what is going on.  That has the ring of truth about it, and the argument is that this makes her continued incarceration the heavier to bear.

6. Her earliest release date from the present sentence, if it remains unaltered, is not very far away - it is 18 April.  If the sentence had been 3 months and not 4 months, she would be leaving prison in just over a week’s time.  Whenever she is released, she will not be allowed to stay in Hong Kong.  The Immigration Department will ensure that she goes back to Indonesia.

7. This is a rehearing.  Because this court has much more time, I know a lot more about this lady’s case than the magistrate did.  I stress that there is nothing wrong with the sentence he passed and I have no criticism of it.  But I do not think I would be doing any grave injustice if I were to say that 3 months is an appropriate sentence on what is now known.

8. So, today, what I shall do is set aside the 4 months and impose 3 months.  I hope the magistrate will forgive me for tinkering in that way, but I doubt very much whether he would disagree if he had heard all the facts that have become apparent in the hearing before me.