HKSAR v. WARNAKULASURIYA SIRIYAKANTHI F

HCMA 1021/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1021 OF 2002

(ON APPEAL FROM TMCC 2292/2002)

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J U D G M E N T

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1. The appellant, a Sri Lankan national, pleaded guilty before the Magistrate to one charge of "Possession of an identity card relating to another person" and one charge of "Breach of condition of stay". On the 1st charge, she was sentenced to 12 months imprisonment and on the 2nd charge, 2 months imprisonment. Both sentences were ordered to be served concurrently, that means a total of 12 months imprisonment.

2. The appellant is now 32 years of age, came to Hong Kong on 28 June 2001 from Sri Lanka, and worked as a domestic helper. Her employment was prematurely terminated on 30 November 2001. According to her condition of stay, she had to leave Hong Kong within 14 days. She did not.

3. On 6 August 2002, she was intercepted in a photo shop when she was together with a native Sri Lankan male who stole a camera from that shop. When she was asked by the police, the appellant produced an identity card belonging to another person and she claimed at the same time that that was her identity card.

4. Before this court this morning, she pleaded for leniency on the ground that her mother is ill in hospital and there is no one to look after her child who has not attended school for 2 months now. She was represented by Duty Lawyer Scheme at the hearing before the Magistrate.

5. Her counsel submitted before the Magistrate that she committed the offence out of her stupidity. The appellant has husband and son in Sri Lanka, and her aged mother was suffering from heart decease. She is now extremely remorse for what she had done.

6. In imposing the sentence that he did, the Magistrate followed the decision in The Hong Kong Special Administrative Region v Chan Man Mo. In that case it was decided that anyone who is here lawfully and using another person's identity card to hide her identity and to seek employment, the usual sentence after plea is one of 15 months imprisonment.

7. In sentencing the appellant, the Magistrate had taken into account all her mitigating factors especially her family circumstances. He was also aware that the appellant has an aged and sick mother. In my view, the sentence imposed by the Magistrate is in no way wrong in principle or manifestly excessive.

8. He gave the appellant a discount of 3 months from the normal 15 months imprisonment on the 1st charge of using another person's identity card, and on the charge of overstaying he imposed a sentence of 2 months imprisonment but he ordered that sentence to run concurrently.

9. In my view, the Magistrate approached the matter properly and imposed a sentence which this court would not in any circumstances think proper to interfere.