HKSAR v. LIANA

HCMA 385/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 385 OF 2004

(ON APPEAL FROM KCCC 4553/2004)

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J U D G M E N T

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1. This Appellant is a woman in her mid-20s and of previous good character. She was charged with breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115. On 30 March 2004 she appeared before D I Thomas, Esq. in the Magistrate's Court at Kowloon City, pleaded guilty and was sentenced to seven months' imprisonment. She now appeals against that sentence.

2. The facts of the case, the mitigation put forward, and the reasons why the Magistrate passed the sentence which he did may all be taken from the Magistrate's Reasons for Sentence.

3. As to the facts, the Magistrate said:

"The appellant, and counsel on her behalf, agree that the following facts submitted by the prosecution were correct.

The appellant came to Hong Kong to work as a domestic helper. Her last contract was with one Cecilia LAM Sau-chun and she was permitted to remain in Hong Kong until 22nd February 2002 or two weeks after the termination of her contract, whichever was earlier. The appellant's contract of employment terminated prematurely on 26th August 2001. The appellant was aware that she should leave Hong Kong two weeks after that date, that is on 9th September 2001. However, the appellant did not leave Hong Kong and overstayed for almost two years and six months.

The appellant surrendered to the Immigration Department on 15th March 2004."

4. The mitigation in addition to the Appellant's clear record was summarised as follows by the Magistrate:

"Counsel told me that the appellant was on her first contract as a domestic helper. The contract terminated prematurely due to the redundancy of the appellant's employer. The appellant's father had died when she was young and her mother is unemployed. The appellant has nine siblings and she paid six months' salary to the employment agent to secure the job in Hong Kong. Accordingly, the appellant felt ashamed to have to return to Indonesia so soon and felt that she would bring disgrace on her family. She therefore stayed in Hong Kong to look for further employment. In this, she was unsuccessful. The appellant became homesick and therefore surrendered to the Immigration Department. Counsel reminded me that he appellant was of clear criminal record and that she had pleaded guilty at the first opportunity.

5. As to why he passed the sentence which he did, the Magistrate said:

"The appellant had overstayed for a considerable period of time. The employment of overseas nationals as domestic helpers is strictly controlled in Hong Kong. I took a serious view of the matter. I took as a starting point a period of imprisonment of twelve months. I gave the appellant full credit for her plea of guilty and reduced the sentence to one of eight months' imprisonment. I noted that the appellant had surrendered to the authorities. That is to be encouraged and I further reduced the sentence to one of seven months' imprisonment. There being no other mitigating factors, that is the sentence that I passed upon the appellant."

6. In HKSAR v Tiongson Patricia Manalad [2002] 1 HKLRD 681 at p. 684G-H the Court of Appeal observed that no sentencing tariff has been laid down for overstaying and that the range is a wide one stretching from a fine to imprisonment for two years. In that case the Appellant's permission to remain in Hong Kong expired in September 1998. Then, in early 1999, she took up part-time employment at a florist shop. And in March 2001, using keys which she had found in the shop, she entered the home of the proprietor of the shop and committed a burglary there. Charged with burglary and overstaying, she pleaded guilty to both. The District Court Judge took starting points of 3 years for the burglary and 9 months for the overstaying, discounted them to 2 years and to 6 months respectively for the guilty pleas, and made the terms consecutive to arrive at a total of 2 years and 6 months' imprisonment.

7. The Court of Appeal declined to disturb the term imposed for the burglary, but reduced the total sentence to 2 years and 3 months' imprisonment on the basis that the proper starting point for the overstaying was 41/2 months to be discounted to 3 months for the guilty plea.

8. There are only two other cases I would mention, both are decisions of the High Court on appeal from the Magistrate's Court, one decided before Manalad's case and the other after it, but both consistent with it. The earlier case is R v Iqbal Zahid alias Zahid Iqbal, Magistracy Appeal No. 560 of 1996 (15 August 1996). At p. 2 Stock J (as he then was) said:

"Mr Veltro has most helpfully referred me to his records and summaries of a large number of cases within this category. They are all decisions on appeals to the High Court from magistrates. The range is wide, from one month to nine months, although the majority appear to me to be in the two to three months rather than six month range. The extent to which the offender has overstayed is a clearly relevant factor. In this case he overstayed for three and a half years. What is more, he had previously overstayed and had been prosecuted and removed from the jurisdiction. Therefore he was fully aware of the seriousness of doing so, and the possible consequences. So his flouting of this law for the second time was with cynical disregard of Hong Kong's immigration rules. In the circumstances, six months is on the high side but not manifestly excessive.

9. The later case is HKSAR v Tagulao Marcelita A, Magistracy Appeal No. 528 of 2002 (11 July 2002). The Appellant in that case had overstayed for an extremely long period, namely 8 years and 3 months. In those circumstances, I was of the view that the Magistrate was entitled to take a starting point of 12 months, discounted to 8 months for the guilty plea. And I interfered by reducing the sentence to 6 months' imprisonment because the Magistrate had omitted to give the Appellant any credit for having surrendered to the Immigration Service.

10. In the present case, the Appellant, who also eventually surrendered to the Immigration Service, had overstayed for 21/2 years. Although this is a substantial period, it is considerably less than the 31/2 years in Zahid's case and very considerably less than the 8 years and 3 months in Manalad's case. In my view, as submitted by Ms Anita Ma for the Appellant, a starting point of 4 months is appropriate in all the circumstances of the present case. Having regard to the guilty plea, the fact that the Appellant surrendered to the Immigration Service and in all the circumstances, it would the appropriate to give such a discount as would bring the sentence down to 2 months' imprisonment. The sentence passed by the Magistrate is manifestly excessive. I allow this appeal so as to reduce the Appellant's sentence to 2 months' imprisonment.