R. v. DHARMVIR

IN THE HIGH COURT

1995, No. 339
Magistracy Appeal

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J U D G M E N T

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Litton, V.-P.:

1. This is an appeal against sentence. The appellant, 22 years of age, pleaded guilty to two charges before Miss Mary Yuen at the Western Magistracy on 22 February 1995. The two charges are as follows: (a) breach of a condition of stay, contrary to section 41 of the Immigration Ordinance; and (b) having on 6 October 1993 at the Hong Kong International Airport made a statement known to be false, contrary to s42(1)(b) of the Immigration Ordinance in that he furnished to an Immigration Assistant an arrival card stating a false identity. Both offences are punishable with imprisonment. In relation to charge (a) he was fined $90. In relation to charge (b) he was sentenced to three months' imprisonment. At the same time the magistrate, pursuant to her powers under s109C(1) of the Criminal Procedure Ordinance, activated a previously suspended sentence imposed on the appellant.

2. The appellant now appeals against the sentence of three months' imprisonment in relation to his conviction on charge (b).

3. It is necessary to have a look at the overall picture and to this end I revert to the previously suspended sentence which was activated by the magistrate on 22 February 1995.

4. In that regard what happened was that in December 1993 the appellant had overstayed and committed an offence under s41 of the Immigration Ordinance for which he was sentenced to two months' imprisonment suspended for two years. It was during the occurrence of that suspension that he committed the present offence of overstaying, contrary to s41 of the Immigration Ordinance. The magistrate ordered that the activated sentence of two months' imprisonment should be served consecutively to the sentence on charge (b) with the result that the appellant must serve a total of five months' imprisonment.

5. It does not appear to me that the magistrate had erred in any way in principle. All relevant considerations were taken into account and there are no grounds for interfering with the sentence. The appeal is accordingly dismissed.