HKSAR v. Iu King Wa

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 190 OF 1998

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J U D G M E N T

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1. On 5th February of this year, the Appellant was convicted on her own pleas of two offences, the first being an offence of remaining in Hong Kong without the authority of the Director of Immigration, contrary to section 38 (1)(b) of the Immigration Ordinance, the second being the offence making a false representation to an immigration officer, contrary to section 42 (1)(a) of the same Ordinance. She was sentenced to twelve months' imprisonment on the first charge and three months' on the second, the sentences to be served concurrently. She now appeals on the basis that the sentences were manifestly excessive.

2. Effectively, the Appellant has thrown herself on the mercy of the court saying that she has a five-year old child in China, that the father has deserted the child and is now with some other woman and that her mother is sick and unable to look after the child any longer. She has also taken issue with certain of the facts which were agreed by her when she appeared in the Magistracy but they do not affect this appeal.

3. The Appellant has accepted that she was in Hong Kong without permission to do so, indeed her permit permitted her to remain only until the 2nd of November 1996. She was, therefore, unlawfully in Hong Kong for period of approximately two years. She has further accepted that, when she was stopped at a road block, she gave a false name. She did this, she said, because she was frightened of being imprisoned.

4. In respect of the first charge, the Magistrate explained to the Appellant that the standard sentence after a plea of the guilty was fifteen months' imprisonment. However, by exercising mercy, the Magistrate reduced the standard sentence from fifteen months to twelve months because this was the Appellant's first conviction. As for the second charge, the Magistrate imposed a sentence of three months' imprisonment on the basis that the misrepresentation by her was not a serious one and was probably made in panic. As I have said, in any event, the two sentences were ordered to be served concurrently.

5. In the present case there can be no suggestion that the sentences are wrong in principle or manifestly excessive. Indeed, the Magistrate tempered the law with mercy. Whatever personal sympathy I may have for this Appellant, her appeal must be dismissed.