HKSAR v. CHAN YING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1067/97

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J U D G M E N T

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1. This Appellant appeals against sentence in respect of two charges, one of possession of an identity card relating to another person; the second a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. The Respondent has conceded that the second charge was in fact incorrect, it was laid incorrectly as a result of lies told by Appellant to the police. She should have been charged with Breach of Condition of Stay but told the police that she was an illegal immigrant and did not inform them or, later, the Magistrate that she had arrived in Hong Kong legally, even if she had then breached the condition.

2. Appellant came to Hong Kong in 1996 and lived here with her husband until her arrest on 17th October 1997. She did this, apparently, because her marriage was in difficulties as her husband was having an affair with her older sister. The Magistrate in looking at the sentence for this offence considered that the usual 15 months sentence should apply, but reduced the sentence, apparently because of his sympathy for the Appellant's position, and imposed a sentence of 12 months on each charge and ordered the sentences run concurrently. Today, it is suggested by counsel for the Appellant that these sentences were in some way incorrect; that greater attention should have been paid by the Magistrate to the position of the Appellant and that I should do so because of various matters she has revealed in her affirmation filed for the appeal.

3. I can see no reason at all to interfere with the sentence on the A charge, the Magistrate had the facts relating to the possession of the Hong Kong identity card in his purview. He obviously gave a reduction because of the sympathy he felt for the Appellant's position and that sentence remains. In respect of the B charge, the Prosecution has conceded it was incorrectly laid and the conviction on the B charge is quashed. I have considered whether or not I should exercise my power under Section 119G of the Magistrates Ordinance to find the Appellant guilty of the offence of breach of condition of stay but have decided that I should not do so in this case. Accordingly, the sentence on B charge is quashed as is the conviction, the sentence on the A charge remains at 12 months.