HKSAR v. KWOK TUNG MUI

HCMA816/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.816 OF 2000

(ON APPEAL FROM TMCC 2489 OF 2000)

---------------------------

----------------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant is aged 36 years. She was found in the small hours of 28 July 2000 in a hut in Tin Shui Wai by police officers who were carrying out an anti-illegal immigration operation. She had no proof of identity and she admitted that she was an illegal immigrant. Before the magistrate, she pleaded guilty, and he sentenced her to 15 months' imprisonment for the offence of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully.

2. In mitigation, it was said to the magistrate on her behalf that she had very substantial debts on the mainland and was trying to avoid the consequences of them. She appeals against sentence.

3. This appellant has previous convictions for importing and exporting unmanifested cargo. She was given, in 1998, a suspended sentence and fined; and in September 1999, she was sentenced to two months' imprisonment for breach of condition of stay. So within 10 months or so, she once again breached Hong Kong's laws and immigration laws.

4. In support of her appeal today, she advances facts which are not apparent in their entirety from the mitigation advanced before the magistrate, namely, that she needed to borrow money from relatives in Hong Kong in order to have her house on the mainland released for her occupation pursuant to some court order.

5. Personal and financial problems are regularly put forward to these courts in seeking leniency for immigration offences. But as I have explained earlier today to another appellant whose circumstances were personally extremely difficult, that if the courts were to extend leniency in every such case advanced in mitigation, there would be no effective sentencing policy for these offences. This is an appellant who has previously breached Hong Kong's immigration laws and knew full well the risk she was running; and she must in consequence bear the result of what she has done.

6. I can see nothing in the magistrate's approach to warrant upsetting the sentence. This appeal is accordingly dismissed.