HKSAR v. BUI THI TUYET NHUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 205/98

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J U D G M E N T

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1. The Appellant in this matter was convicted on her own pleas of two offences. The first was one of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong contrary to Section 38(1)(b) of the Immigration Ordinance. The second was one of possessing an identity card relating to another person contrary to Section 7A(1)(a) of the Registration of Persons Ordinance. The Appellant was sentenced to 12 months imprisonment on each charge, the Magistrate ordering the sentences to run concurrently.

2. The admitted facts were that the Appellant arrived in Hong Kong by boat from Vietnam in early January of this year. She had been here approximately one month when she was stopped by police and asked for proof of identity. She produced an identity card which was later found to belong to somebody else. She originally told the Magistrate that she had found the identity card. Today, however, she said that she came to Hong Kong because she needed work and a colleague helped to acquire the card.

3. The Magistrate was aware that the standard sentence in cases of this kind was 15 months which allowed for a guilty plea. The sentence which was imposed was, therefore, 3 months less than the standard and allowed for an element of mercy.

4. Effectively, today the Appellant has thrown herself on the mercy of the court. She has said that her husband is out of work in Vietnam and that she has two children who she must support. She begs for a reduction in sentence so that she can return to the Vietnam and look after her children. These matters, however, were placed before the Magistrate and it is clear from his statement of findings when he took them into account. Indeed, they were so persuasive that the Magistrate reduced the sentence to be imposed from 15 months to 12 months.

5. It is not my function as a Judge of Appeal to exercise the prerogative of mercy without restraint. I am obliged in all but the most exceptional cases to change the sentence only when I find it to be wrong in principle or manifestly excessive. In this case, I can find no exceptional circumstances. Nor can it be said that the sentence was wrong in principle or manifestly excessive. If anything, the Magistrate showed an element of compassion for this young lady's predicament.

6. The appeal is dismissed.