HKSAR v. CHENG WA

1997, NO. MA 910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted by her own plea of overstaying in Hong Kong. She came to Hong Kong on a two way China Permit on 19^th December 1993 and she should not stay beyond 9^th March 1994 but she stayed on until she was arrested on 8^th August 1997. She had overstayed for three years and five months. She was sentenced to 10 months imprisonment. The magistrate adopted a starting point of 15 months and reduced it to 10 months taking into account her plea and the fact that she came to Hong Kong to look after her husband's father. She now appeals against sentence.

2. Mr Yip for the appellant submits that although the appellant had overstayed, she did not overstay in order to work in Hong Kong. A starting point of 15 months in the circumstances is manifestly excessive because the sentences imposed for similar cases are in the region of three months imprisonment. Mr Yip refers to R v. Jahangir Ahmed Mirza MA799/94 where Litton J.A. sitting as an additional Judge of the High Court was of the opinion that a fine or a short term of imprisonment would be appropriate for an offence of breach of condition of stay. In that case the appellant was sentenced to three months imprisonment. His Lordship had this to say :

"... As to charge B, breach of the condition of stay, a fine was plainly a possible option but in the absence of evidence that the appellant was able to pay any substantial fine the magistrate might have thought he was left with no alternative but to impose a sentence of imprisonment."

3. Mr Yip also refers to R v. Pui Sui Moi MA856/93. In that case, the magistrate took six months as a starting point for an offence of overstaying and reduced it to two months imprisonment, after allowing discounts for the appellant's clear record and agreeing to the brief facts. In respect of that sentence, Keith J. said this in his judgment :

" I am wholly unpersuaded that the sentence which the magistrate imposed was either manifestly excessive or wrong in principle. In saying that, I should not be taken as agreeing with the magistrate that 6 months' imprisonment was the correct starting point. What I am saying is that the sentence which the magistrate ultimately opposed, a sentence of 2 months' imprisonment of immediate effect, was thoroughly deserved."

4. Thus it should be noted that a six months starting point was not considered appropriate. However, Keith J. did not say what should be the appropriate sentence in that case.

5. Be that as it may, Mr Cheung counsel for the Government, concedes that 15 months imprisonment as a starting point in the circumstances of the present case is manifestly excessive and in most cases, a few months imprisonment would have been adequate punishment.

6. The sentence of 10 months imprisonment is manifestly excessive. The appellant has already served 3 1/2 months and that is equivalent to almost a five months sentence. If a sentence of five months had been imposed, that would have been more than what an offence of this nature in the present circumstances would attract. The appeal against sentence is allowed and the sentence of 10 months imprisonment set aside and a sentence of such a term as would enable the appellant to be released immediately and repatriated forthwith is substituted for it.