HKSAR v. FLORDELISA BATT LEGUARDA

HCMA 40/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 40 OF 2011

(ON APPEAL FROM STCC 5898/2010)

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JUDGMENT

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1.  The appellant was convicted by Ms Eda Loh, on her own plea, of a single offences contrary to ss. 42(1)(a) of the Immigration Ordinance, Cap. 115, of making a false representation to an Immigration Officer. The offence occurred on 2 April 1987 when, in order to extend her permitted stay in Hong Kong as a domestic worker, she represented herself to be Florentina L. Parel born on 19 November 1956. She now accepts that her true identity is Flordelisa Baat Leguarda and birth date 16 October 1956.

2.  She was sentenced to undergo imprisonment for a period of six months. She asserts that the sentence is “too long”.

3.  The magistrate recorded, helpfully, that she ignored the nine immigration related offences - including four similar to the present offence and one for breach of a deportation order - of which the appellant has been convicted between April 1989 and June 2006. She obtained a background report to ensure that she was fully apprised of the appellant’s personal circumstances: it provided no further mitigation.

4.  The task which faced the court was to determine the appropriate sentence for this offence in 1987: there is scant authority. Current sentences consistently indicate that a sentence of 12 months imprisonment on a plea of guilty, extrapolated to 18 months after trial, is appropriate for this offence. The magistrate, reciting available decisions whilst recognizing that circumstances have changed since 1987, adopted a notional starting point of 9 months and reduced it by one third for the plea.

5.  The magistrate was correct in adopting the approach she did. The appeal is dismissed.