HKSAR v. GALLARDO EMELITA JAIME

HCMA 261/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 261 OF 2010

(ON APPEAL FROM ESCC 1326/2010)

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J U D G M E N T

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1.  This case is before me today as an application for bail pending appeal.  The Appellant appeared before Ms Adriana Tse in Eastern Magistracy on 1 April 2010 and pleaded guilty to an offence of obtaining property by deception contrary to section 17(1) of the Theft Ordinance, Cap. 210.

2.  She was sentenced to a term of 4 months’ imprisonment and she has lodged a notice of appeal against sentence and applied for bail pending appeal.

3.  Notwithstanding the fact that the matter is only before me on the bail application today, I am satisfied that I can in fact deal with the appeal itself, and should deal with the appeal itself, in all the circumstances of the case.

4.  I have read the Magistrate’s Reasons for Sentence which have been put before me today and I am satisfied that the Appellant should not be in custody in respect of this matter and that it is in the interest of justice to deal with the appeal straightaway, those interests being directed to both towards her and in a wider sense, including the respondent to the appeal.  (The Respondent does not object to this approach to the appeal.)

5.  I will outline briefly the circumstance which led to the charge of the offence to which she pleaded guilty.  On 28 March 2010, the Appellant was seen by a police officer in Cross Street in Hong Kong holding a plastic transparent box.  She was asking other Filipinas for donations.  She is Filipina herself.  The box did not bear the name or logo of any charitable organization but there was attached to it a piece of paper on which was written “donation – Please help to feed, clothe and send to school. a Million children”.  The officer intercepted the Appellant and found the box contained HK$167 and 2 euros. 

6.  The Appellant when questioned by the officer said that she was seeking to raise money for her parents’ medical expenses.  The Appellant maintained, when she was questioned further, that HK$100 of the money in the box had been put in by herself to pretend that others had given a donation; and the remaining money (i.e. HK$67 and 2 euros) were in fact donated by other people. 

7.  The Appellant is a single woman aged 40.  She has a clear record.  She is a domestic helper in Hong Kong and has been working here since 2001. 

8.  The Magistrate’s Reasons for Sentence set out the circumstances as I have had just indicated.  The Appellant was represented by counsel in the Magistrate’s Court and counsel submitted that the Appellant was remorseful.  He said that the facts of the case were “very serious”. 

9.  The Magistrate, in the Reasons for Sentence, indicated that the facts of this case were indeed to be regarded as serious.  There was obvious premeditation.  The Appellant was asking other Filipinas for donations, and her own financial difficulties might also apply to other Filipinas.  The Magistrate took the view that the Appellant was targeting other Filipinas and adopted a starting point of 6 months’ imprisonment and gave credit for the Appellant’s plea of guilty and reduced the sentence to 4 months’ imprisonment.

10.  The Appellant appeared unrepresented before me today because there has not been the opportunity for her application for Legal Aid to be considered.  However, as I have already indicated, I am satisfied there is no need for that application to be considered, because I am satisfied that sentence imposed upon her was excessive and that the circumstances of the case did not warrant the imposition of a sentence of imprisonment.

11.  That is the reason why, without objection from the prosecution, I have, in any effect, converted the application for the bail into the hearing of the appeal itself.  I have not called upon the Appellant to make any submission.

12.  I have come to the conclusion that in all the circumstances of the case, including the Appellant’s own background, her clear record and plea of guilty, in all the circumstances of the case, there is no need for a sentence of imprisonment, either immediate or suspended, and that she should be released from custody immediately.

13.  She has indicated to me this morning that she is likely to return to the Philippines and to try to come back to look for another job but whether she is successful in that it is not for me to consider.

14.  In particular, I note she has spent 10 days in custody and I am satisfied those 10 days amount to a sufficient punishment for this offence.  The question therefore is how I should deal with it now: I intend to allow the appeal.  I am not inclined to substitute a shorter sentence of imprisonment simply because I do not think this case justified a sentence of imprisonment.

15.  It seems to me that the most appropriate way to dispose of the case is by way of absolute discharge.  I did consider whether a conditional discharge would be more appropriate but I think not in the circumstance because I think that in any event, she has served any punishment that is appropriate for this offence.  Accordingly, the appeal against sentence is allowed, the sentence is quashed and an absolute discharge is substituted.