HKSAR v. NGUYEN THI THOA

HCMA 110/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 110 OF 1999

(On appeal from FLCC 2591 of 1998)

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J U D G M E N T

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1. The appellant appeared in Fanling Magistracy on the 21 December 1998 and was convicted on her own pleas of an offence of Remaining in Hong Kong without the authority of the Director of Immigration contrary to s. 38(1)(b) of the Immigration Ordinance, Cap. 115 and of a further offence of Breaching a Deportation Order contrary to s. 43(1)(a) of the same Ordinance.

2. As to each offence she was sentenced to 12 months imprisonment, the sentences to be served concurrently. She appeals against those sentences on the grounds that they were too severe.

3. In his very thorough and detailed reasons for sentence the learned magistrate sets out the facts of the case. They were that the Appellant was found by police officers to have hidden herself underneath a truck which had crossed into Hong Kong at the Lok Ma Chau crossing point. She was subsequently, through fingerprint comparison, found to have been the subject of a deportation order.

4. The magistrate in sentencing the Appellant for these offences considered thoroughly her background and the other matters advanced in mitigation before him and to a large extent repeated before me today.

5. He referred to R. v. SO Man-king (1989) 1 HKLR 142 in arriving properly at 15 months as the appropriate sentence after a plea of guilty in respect of the 1st offence.

6. As regards the 2nd charged offence he considered HKSAR v. LUN Din-hing M.A. 690/97 and R. v. Corazon S. Duazo M.A. 1124/96 where sentences of 16 months and 12 months were respectively regarded by the court as appropriate following a plea of guilty in respect of an offence of this nature.

7. He, on the basis of those cases decided that the appropriate sentence in this case was 15 months imprisonment after the Appellant's plea

of guilty. He then, in his words "purely as an act of mercy", further reduced the sentences for each of the 2 offences to 12 months imprisonment.

8. That act of mercy was apparently based on the magistrates taking into account the hardship that the Appellant's mother and children in Vietnam would suffer as a result of her imprisonment in Hong Kong.

9. Further, the learned magistrate having considered the totality of sentence, ordered that both sentences be served concurrently. This was effectively a second act of mercy.

10. Accordingly in my view the sentences imposed on the Appellant have within them already a large component of mercy. The Appellant now seeks to argue that they are too severe.

11. In doing so she has advanced the same matters already taken into account by the learned magistrate before me. In my view the Appellant has been treated very leniently indeed particularly in the learned magistrates ordering of the two sentences he imposed to be served concurrently. The Appellant cannot say, that the sentences are individually or in totality too severe. She has advanced nothing before me which could in any way allow that conclusion.

12. There is no merit in the appeal and it is dismissed.