HKSAR v. CHAN CHUN MUI

HCMA1194/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1194 OF 1998

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J U D G M E N T

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1. The Appellant pleaded guilty before a magistrate to a charge of breach of condition of stay, contrary to s.41 of the Immigration Ordinance, Cap.115.

2. In the brief facts of the case to which the Appellant agreed when pleading guilty, it was stated that she was arrested by the police for overstaying on 31st October 1998. She came to Hong Kong on 11th August 1996 and was permitted to remain as a visitor until 2nd November 1996. This shows that she had stayed in Hong Kong before she was caught for two years but two days.

3. In R v Chong Yuk Lun, HCMA129/90 (16th February 1990, unreported) my brother Ryan J dismissed an appeal from a Magistrate's Court where the Appellant was sentenced to 10 weeks' imprisonment for overstaying for 10 weeks. There Ryan J said :-

"The Magistrate was right to regard the offence as aggravated by an overstayer taking up employment and by the length of the overstay. In my view it is not wrong in principle to impose a custodial sentence on first offenders who plead guilty to offences of this kind."

4. In R v Tseung Sau Tao, HCMA955/92 (2 March 1993, unreported) Wong J dealt with a similar case. The appellant pleaded guilty before a magistrate for overstaying for almost 4 1/2 years and appealed against the sentence of 12 months' imprisonment. The Judge agreed with the magistrate that a deterrent sentence was considered necessary. Considering the appellant's good family background, clear record, plead of guilty and co-operation with the police after arrest, the Judge reduced the sentence to six months' imprisonment.

5. I agree with both of my brethren and consider that a deterrent sentence for overstaying for a long period is appropriate. Here, the Appellant was sentenced by the Magistrate to two months' imprisonment suspended for three years and a fine of $3,000.

6. I do not consider the Magistrate had erred either in law or on principle. The Appellant has not shown any ground before me that the sentence was wrong or it should be reduced. I would dismiss the appeal.