CHAN CHUN MUI v. HKSAR

FAMC No. 13 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 13 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA No. 1194 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1. This applicant came to Hong Kong from the Mainland on 11 August 1996, and was given permission to remain here as a visitor until 2 November 1996. But she remained here beyond that date. She was arrested on 31 October 1998, by which time she had overstayed by two years less two days.

2. She was charged with - and pleaded guilty to - breach of condition of stay, contrary to s.41 of the Immigration Ordinance, Cap. 115. The magistrate passed a sentence of two months' imprisonment suspended for three years, and imposed a fine of $3,000.

3. An appeal to the High Court against sentence was dismissed. We are now asked to grant leave to appeal to the Court of Final Appeal against sentence, which is a very rare course indeed. The grounds upon which the applicant seeks such leave are set out in her notice of application, in which she says :

"I overstayed in Hong Kong because I needed to take care of my unemployed husband and our two small children. And the sentence passed on me is really too heavy, putting my family and finances under great strain. This is my appeal to the Court of Final Appeal against the sentence."

4. The maximum penalty for this offence is a fine of $50,000 and two years' imprisonment. That is provided by s.41 of the Immigration Ordinance read with s.113B of, and Schedule 8 to, the Criminal Procedure Ordinance, Cap. 221.

5. In his reasons for sentence, the magistrate said that persons who overstayed for more than two years were invariably sentenced in the Western Magistracy to terms of immediate imprisonment. As for the fine, he observed that it had been paid immediately. Appearing before us this morning, the applicant said that she had to raise a loan to pay the fine. The judge noted two past cases. In one, 10 weeks' imprisonment had been imposed for overstaying for 10 weeks. In the other, 12 months' imprisonment was imposed for overstaying for almost 4 1/2 years.

6. No point of sentencing principle arises. Neither the course of the sentencing process nor its result give rise to any arguable case of great and substantial injustice.

7. In the course of addressing us which she did with courtesy and restraint despite her difficult circumstances the applicant said that she had to overstay in order to look after her children, particularly as her husband had become unemployed which did not improve his patience or temper.

8. She is concerned that her conviction may adversely affect her future efforts to obtain permission to come here or remain here. And she wishes us to intervene with the Immigration Department on her behalf. The applicant's predicament is a difficult one, as the magistrate must have recognized since he dealt with her more leniently than most overstayers are dealt with. However much we may sympathize with her in her predicament as anybody would that course is outside our jurisdiction.

9. There is no basis for granting leave to appeal to the Court of Final Appeal. Accordingly we must and do refuse leave.