HKSAR v. PALATHANTHIRIGE, WARUNI PRASANTHIKA

HCMA 541/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 541 OF 2015

(ON APPEAL FROM STCC 2588/2015)

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REASONS FOR JUDGMENT
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1.  The Defendant pleaded guilty at Shatin Magistracy to one charge of Breach of condition of stay[1]. On 17 August 2015, the Principal Magistrate (“the Magistrate”) sentenced her to 5 months’ imprisonment. She appeals against the sentence.

2.  At the appeal hearing, after having heard submission, I allowed the appeal and reduced the sentence to one which will allow immediate release of the Appellant.  There was an application for costs which I refused.  I said I will provide reasons for the decisions in writing. This is it.

Facts

3.  This is a case of overstaying.  On 5 August 2015, the Appellant surrendered to the Immigration Department.  Records show that she had been approved to work in Hong Kong as a domestic helper and was permitted to stay here until 23 September 2011 or two weeks after termination of the employment contract, whichever was earlier.  The contract terminated prematurely on 6 December 2009.  As a result, pursuant to her condition of stay she was to leave Hong Kong on 20 December 2009.  She did not do so and had overstayed for more than 5 years and 7 months.

Mitigation

4.  The Appellant was represented at the Magistracy[2] and the following main points were put forward on behalf of her in the course of mitigation :

(1) The Appellant is 29 years of age, married but divorce proceedings have commenced;

(2) She has a daughter 11 years of age;

(3) She surrendered to the authority;

(4) She pleaded guilty at the earliest opportunity;

(5) She is remorseful;

(6) She has a clear record;

(7) The main reason for her overstaying was that she did not want to go home as she wanted to avoid divorce initiated by her husband who has extra-marital relationship, due to tradition a divorced mother might prejudice the marriage of her daughter; and

(8) Her father was suffering from terminal stage cancer, an affidavit deposed by her father with a medical report enclosed was produced in support of this matter.

Reasons for sentence

5.  The Magistrate stated the followings :

(1) The Appellant had overstayed for almost 6 years;

(2) Whilst accepting what Counsel told the Court, he saw no compelling reason for the Appellant to stay in Hong Kong after the premature termination in particular as her daughter was younger than 5 at the time the contract terminated[3];

(3) Overstaying is prevalent and has become a social concern in terms of financial resources, security and many other factors;

(4) Deterrent sentence for overstaying for a long period is appropriate;

(5) The only reasonable inference is that the Appellant had taken up unlawful employment during the period of overstay; and

(6) Despite illness of the Appellant’s father deserves some sympathy, the extent was reduced since the Appellant simply overstayed until she learnt the bad news of her father.

6.  After referring to several cases, the Magistrate adopted 9 months as the starting point.  He gave the Appellant a 1/3 discount for her guilty plea and a further discount of 1 month for her surrender.  As a result, he imposed a sentence of 5 months’ imprisonment.

Grounds of Appeal

7.  The Appellant was represented by Ms. Eugenia Yang, who did not appear for the Appellant at the trial.  She put up the following grounds of appeal :

(1) The starting point of 9 months was wrong in principle or manifestly excessive;

(2) The Magistrate failed to exercise clemency in the light of the poor health condition of the Appellant’s father; and

(3) As the Appellant had just been confirmed to be pregnant, clemency should in any case be exercised to reduce the sentence.

DISCUSSION AND CONSIDERATION

GROUND 1

8.  Sentencing for overstaying was considered by the Court of Appeal in HKSAR v Tiongson Patricia Manalad[4].  Suffiad J had the following observations :

(1) There is no tariff for this type of offence;

(2) There has been a wide range of sentence from a fine to imprisonment term up to 2 years;

(3) Length of the overstay is what the court looks at;

(4) Taking up of employment during the period of overstay is an aggravating factor; and

(5) There should be consistency in sentence.

9.  In my judgment, all that were mentioned by the Magistrate are matters he should take into account in determining the sentence to be imposed.  There is, however, one matter which causes me concern.  It is in relation to the inference which the Magistrate drew about the Appellant taking up unlawful employment during the period of overstay.  The Magistrate said :

“No reference was made by counsel as to how the Appellant, who came here to earn a living as domestic helper, maintained her living during the rather long period of overstay. Moreover, she chose not to return home while her daughter was only about 6 years old when her contract was terminated. The only reasonable inference that can be drawn was that she took up unlawful employment whilst overstay.”[5]

10.  The information available before the Magistrate supports an inference that the Appellant had taken up employment but I find myself unable to agree that the conclusion is the only reasonable inference.

11.  Indeed, Counsel for the Respondent, Ms Samantha Chiu, SPP, fairly remarked that no evidence is available to show that the Appellant had taken up employment.

12.  Besides, the Magistrate fell into error in his approach.  This matter which he had taken into account unfavorably against the Appellant is neither mentioned in the Brief Facts admitted by the Appellant nor expressly brought to the attention of the Court by any legitimate means.  As the Magistrate was minded to draw this inference detrimental to the Appellant, it would have been fair to alert her Counsel so that he would consider what course to take and what submission to make.  The Magistrate did not do so.

13.  In all the circumstances, I am of the view that the Magistrate erred in taking into account that the Appellant had taken up unlawful employment during her period of overstay.

14.  The question then is whether, taking away the factor of employment, the 9 months starting point adopted by the Magistrate is still correct and appropriate.  

15.  Ms Yang urged the Court to adopt a lower starting point.   On the other hand, Ms Chiu, SPP, submitted that the sentence imposed is neither wrong in principle nor manifestly excessive.  Both Counsel referred a number of cases to the Court, all of which I have considered.

16.  An offender for breach of condition of stay is liable to a fine at level 5 and to imprisonment for 2 years. Length of the period of overstaying is the principal factor in sentencing.  I also bear in mind the need for consistency.

17.  In HKSAR v Tiongson Patricia Manalad, the Appellant overstayed for about 2 ½ years working.  The offence came to light when she was discovered to have stolen from her employer.  Having considered cases including R v Tseung Sau Tao[6], R v Dilip Kumar Bhattarai [7] and R v Iqbal Zahid [8], the Court of Appeal held that a starting point of 4 ½ months was appropriate in the circumstances of that case.

18.  In HKSAR v PING-AY, JOSIE EBLOGEN[9], the Appellant overstayed for 8 ½ years.  She pleaded guilty to the offence and her sentence of 6 months’ imprisonment was upheld by Macrae J (as he then was).

19.  The same sentence after plea was endorsed by Deputy High Court Judge (as she then was) E Toh in HKSAR v Sapon Imeldag[10] where the Appellant overstayed for slightly more than 8 years.

20.  A higher starting point of 12 months was, however, upheld by V. Bokhary J in HKSAR v Tagulao Marcelita A[11] where the Appellant had also overstayed for slightly more than 8 years.

21.  In HKSAR v Leonarda Millo Simon[12], the Appellant overstayed for 5 years 9 months.  Beeson J upheld a starting point of 15 months.  In that case, the Appellant produced an identity card relating to another person upon being asked to produce proof of identity.

22.  In HKSAR v Abdul Matin[13], the Appellant overstayed for 1 year 6 months.  Deputy High Court Judge (as he then was) McMahon observed that “it is important that such conditions imposed on visitors to Hong Kong be honoured and that breaches of this significance attract a deterrent penalty.  His Lordship found the sentence of 2 months’ imprisonment after plea extremely lenient.

23.  In HKSAR v Siti Iftakurohmah[14], the Appellant overstayed for 4 years 8 months.  M Poon J upheld the starting point of 6 months.

24.  The Magistrate mentioned about prevalence of the offence.  Notwithstanding that there is no statistics before the Court, this observation by a very experienced Magistrate who has dealt with a lot of cases of this nature carries considerable weight.

25.  I share what Deputy High Court Judge Wong said in HKSAR v GUO TING FEI[15] that if people in large numbers overstay, it will cause problems in terms of financial resources, security and many other factors.

26.  In my judgment, the Magistrate would have been justified to adopt the starting point as he did for an offender who had overstayed for this length of time, even if he had not made the finding in relation to employment.  A starting point of 9 months is on the high side but is still within the reasonable range.

27.  Ground 1 fails.

GROUND 2

28.  The Appellant is entitled to a 1/3 discount for her guilty plea.  I am in agreement with the Magistrate that a further discount of 1 month should be given to recognize the surrender.

29.  Ms Yang submitted that the Court should give the Appellant further discount in exercise of clemency by reason of poor health of the father of the Appellant.

30.  Whilst the Magistrate had expressed his sympathetic view of the matter, it remains the rule that it is for the accused to substantiate the facts he relies upon in mitigation.  Ms Chiu pointed out that authenticity of the medical report is doubtful.  There was sense in this submission.  Nevertheless, as the Magistrate had in his consideration taken into account the health condition of the father, I do not see strong ground to interfere with his judgment.

31.  It was for the Magistrate to exercise his judgment as to whether to give further discount for this matter.  The Appellant failed to convince me that the Magistrate had flawed in deciding not to do so.

32.  Ground 2 also fails.

GROUND 3

33.  The Court is now provided with reliable medical evidence that the Appellant is pregnant and the approximate date of delivery is 4 May 2016. The Respondent took no issue of this matter.

34.  As the Appellant was sentenced on 17 August 2015, it is possible that she was not actually aware of her pregnancy at that time.

35.  No matter whether it was so, the Magistrate had not been informed of the matter and therefore this matter had not been taken into account in sentencing.

36.  In HKSAR v Chan Yuk Lam[16], Deputy High Court Judge (as he then was) McMahon observed that it has become almost customary to allow first time immigration offenders considerable discounts in sentence because of their pregnancy.

37.  In all the circumstances, I am of the view that a reduction in sentence is justified for this matter.  

CONCLUSION

38.  The Appellant has been in custody since 17 August 2015.  In my judgment, an approach which may be considered as generous in terms of percentage may be preferable than giving the Appellant a further reduction which has the effect of keeping her in custody longer for just a very short period. 

39.  I therefore allow the appeal. The sentence is reduced to an imprisonment term which has the effect of an immediate release of the Appellant.

APPLICATION FOR COSTS

40.  There was an application for costs.  It was dismissed by me.

41.  Despite the appeal is successful, it involved a determination after consideration of a matter which had never been brought to the attention of the Magistrate.  Award of costs is discretionary. Notwithstanding that the Appellant might only have come to know her pregnancy after the hearing before the Magistrate, in the particular circumstances of the case, I do not consider it just and reasonable that the Respondent has to bear the costs incurred by the Appellant.  I therefore refused to grant the costs order.

[1] Contrary to section 41 of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.

[2] The Appellant was represented by Mr Albert KK Fung.

[3] See page 15 R – V in the Appeal Bundle.

[4] [2002] 1 HKLRD 681.

[5] Paragraph 4 in the Reasons for Sentence.

[6] HCMA955/1992.

[7] HCMA606/1996.

[8] HCMA560/1996.

[9] HCMA634/2011.

[10] HCMA948/2003.

[11] HCMA528/2002.

[12] HCMA 1195/2003.

[13] HCMA220/1999.

[14] HCMA 586/2013.

[15] HCMA 195/2002.

[16] HCMA 495/2003.