HKSAR v. PING AY, JOSIE EBLOGEN

HCMA 634/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 634 OF 2011

(ON APPEAL FROM STCC 3792 OF 2011)

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BETWEEN

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J U D G M E N T

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1.  The appellant who is 40 years of age pleaded guilty before a Magistrate to a charge that she had breached her condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115. She was sentenced to 6 months’ imprisonment, from which sentence she now appeals.

2.  Pursuant to an approval for the appellant to work in Hong Kong as a domestic helper, she was permitted to remain until 13 March 2004, or two weeks after the termination of her contract whichever was earlier.

3.  On 5 January 2003, her employment contract was prematurely terminated. However, the appellant thereafter failed to leave Hong Kong as she understood she was required to do.

4.  On 2 August 2011, she surrendered herself to the Immigration Department for having overstayed.  By that time, she had overstayed in Hong Kong for 8 years and 6½ months.

5.  The Magistrate referred to a number of cases where for lengthy periods of overstaying sentences of 6 or 8 months’ imprisonment after pleas of guilty had been approved by the appellate courts.

6.  In particular, in HKSAR v Tagulao Marcelita A, HCMA 528/2002, a sentence of 8 months’ imprisonment was reduced to 6 months where the period of overstaying had been 8 years and 3 months and where the appellant had surrendered to the Immigration authorities.  In giving a reduction of 2 months’ imprisonment, the court considered that some discount should be given to a defendant surrendering to the authorities.

7.  In HKSAR v Guo Ting Fei, HCMA 195/2002, the court upheld a sentence of 8 months’ imprisonment where an imported worker from the Mainland had remained in Hong Kong for almost 5 years.  However, the court remarked that the sentence was on the high side, albeit not manifestly excessive.

8.  In HKSAR v Sapon Imelda G, HCMA 948/2003, on facts very similar to the present case, the appellant surrendered to the Immigration authorities having overstayed in Hong Kong after the completion of her contract for 8 years and 3½ months.  Her sentence of 6 months’ imprisonment was upheld on appeal. Similarly, in HKSAR v Dayanti, HCMA 307/2011, where again the appellant had surrendered to the authorities having overstayed for some 7 years and 4 months after the completion of her contract, the court again upheld a sentence of 6 months’ imprisonment.

9.  It has been made clear by the Court of Appeal in HKSAR v Tiongson Patricia Manalad, CACC 268/2001 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.  I am doubtful whether surrendering to the authorities should have quite the impact on sentence which it might have with other criminal offences.  After all, unless an overstayer does surrender, he or she cannot lawfully leave the territory and will inevitably be picked up at an Immigration check point when trying to return home.

10.  The appellant this morning complains that the sentence is too long, in the light of her health condition and the fact that her son who is some 16 years of age is being troublesome at home.  However, I am satisfied that the Magistrate accurately identified the appropriate authorities and arrived at a sentence which was correct in the principles applied and entirely consistent with those authorities.  The sentence is not manifestly excessive nor wrong in principle and the appeal is dismissed.