HKSAR v. XU MEIXUAN

HCMA 700/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 700 OF 2009

(ON APPEAL FROM STCC 4590/2009)

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J U D G M E N T

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1.  In this case the Appellant appeared before a Magistrate on 24 July 2009 sitting at Shatin Magistracy and pleaded guilty to two separate charges of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.  In addition the Appellant pleaded guilty to a further charge of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.

2.  The Appellant was sentenced to a term of one month’s imprisonment and 2 months’ imprisonment on the breach of condition charges and 12 months’ imprisonment of the charge of using a false instrument.  All sentences were ordered to run concurrently with each other, meaning that the Appellant was sentenced to a total term of 12 months’ imprisonment.  It is against these sentences that the Appellant now appeals on the general grounds that the sentences imposed were too severe.

3.  In court before me today, the Appellant has stated that she has family problems in China as a result of her husband abandoning herself and the children some considerable time ago.  One of the children has suffered in the past from polio and she needs to go back to China to help support the family financially.  I have also had the opportunity of having read the letters that the Appellant has written and submitted to the court.

4.  The facts of the case as agreed by the Appellant were straightforward.  On 21 July 2009, the Appellant was seen washing dishes at the kitchen of Tak Hing Yuen Seafood Restaurant in Siu Sai Wan, Hong Kong.  Enquiries revealed that the Appellant had obtained employment with a cleaning company in April 2009.  The cleaning company had a contract with the restaurant to provide dish-washing services.  The Appellant had obtained this employment by providing a Hong Kong identity card in the name of “Chan Ying”.  The identity card was forged.  The Appellant entered Hong Kong from the Mainland on 7 December 2008 and was permitted to stay until 14 December 2008.  As a condition of her stay, the Appellant was prohibited from obtaining any employment either paid or unpaid.

5.  By the time the matter came to court, the Appellant had overstayed for 7 months.

6.  The Appellant has a previous similar conviction for breach of condition of stay in 2004 when she was sentenced to a term of 2 months’ imprisonment.

7.  The mitigation put forward in the court below reflected the fact that the Appellant has a family in the Mainland and she came to Hong Kong to earn some money to help support her children.

8.  The sentences of 1 month and 2 months’ imprisonment for the offences of breach of condition of stay are unremarkable and in line with normal sentencing practice.  With regard to the offence of using a copy of a false instrument, the Court of Appeal stated in HKSAR v Li Chang Li [2005] 1 HKLRD 864:

“…. if the offender has actually produced or used a forged identity card … in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong, then the starting point upon a plea of guilty should be 15 months’ imprisonment.”

9.  The Appellant in this case was sentenced to 12 months’ imprisonment in relation to the charge of using a copy of a false instrument.

10.  In all the circumstances, the sentences imposed on the Appellant cannot be said to be wrong in principle or manifestly excessive.  Accordingly the appeal against the sentences imposed are dismissed.