HKSAR v. LUK YIM YI

HCMA1040/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1040 OF 1999

(ON APPEAL FROM SKCC 2789 OF 1999)

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J U D G M E N T

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1. The appellant was, on 6 October 1999, convicted on her own plea of two counts, the first being possession of an identity card relating to another person, the second being remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. She agreed the facts of this matter and was represented by counsel. The facts that she agreed were that at 13:28 hours on 4 October 1999, two police officers who were on patrol at the building at No.37, Jordan Road, Yaumatei. When they reached 6/F, they saw the appellant suddenly turn round to the fire exit door and acted furtively. The appellant was stopped and asked to produce a Hong Kong identity card for their inspection. On checking the identity card, it was confirmed that it had been reported as "lost". The appellant was arrested. Having been cautioned, she admitted that the identity card had been picked up in Shenzhen and that she had sneaked into Hong Kong by boat on 3 August 1999. She was formally charged for the above offences and appeared in court in due process.

3. She now comes before me appealing both the sentences passed in respect of these convictions. In respect of the 1st count, a sentence of eight months' imprisonment and in respect of the 2nd count, 15 months' imprisonment. She does not appeal against conviction. On her first appearance before me, she told me that far from sneaking into Hong Kong in August 1999, she had entered Hong Kong legitimately at an earlier stage and was in Hong Kong lawfully but had overstayed. I have caused enquiries to be made and it appears that she did in fact arrive in Hong Kong in May 1998 and was given three months' stay. She has overstayed that period in excess of a year by the time that she was arrested. This is the only matter which she raises before me and there is nothing in what she says to, in any way, disturb the sentence passed down in respect of the 1st charge of possession of an identity card relating to another person, and her appeal in respect of that sentence is dismissed.

4. In respect of the 2nd count, it sits uneasily upon me that when it can be clearly demonstrated that an offence has not been committed, the conviction should stand. She has brought this matter wholly upon her own head and is quite clear that she said she sneaked in August 1999, a short period before she was arrested, to avoid the consequences of having been in Hong Kong unlawfully for a period of over one year. She was quite clearly endeavouring to minimize her acts to obtain a lighter sentence, and in doing so, who was prepared to tell the court outright liens.

5. Notwithstanding that I am prepared to consider the conviction in respect of the 2nd count and allow an appeal out of time against that conviction. I will remit the matter back to the magistrate whom I may say in no way acted inappropriately in all the circumstances and who was totally deceived by the appellant to take consider what conviction, if any, was appropriate under the provisions of the Magistrates Ordinance.

6. An appeal is therefore allowed out of time in respect of the conviction in respect of the 2nd charge and the matters be remitted to the magistrate for his consideration.