HKSAR v. GUO TING FEI

HCMA195/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.195 OF 2002

(ON APPEAL FROM NKCC 993 OF 2002)

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J U D G M E N T

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1. The appellant pleaded guilty before a magistrate to a charge of overstaying in Hong Kong contrary to section 41 of the Immigration Ordinance, Cap. 115. He first came to Hong Kong in March 1995 as an imported worker and his contract of employment was finished the same month in 1997 and after that he continued to stay in Hong Kong without the permission of the Director of Immigration. In imposing the sentence that he did, the learned magistrate took a starting point of 12 months' imprisonment and reduced it to eight months on account of his plea of guilty. The magistrate took into account the family circumstances and personal background of the appellant.

2. Before me this morning, Mr Suen for the appellant referred me to a number of decisions which show that the sentences imposed for this type of offences vary from case to case, but I think the average range of sentences was between three months to six months.

3. On the other hand, Mr Madigan who appears for the Secretary for Justice urges me to uphold the sentence on the ground that the offence has become far too prevalent. Overstaying or breach of conditions of stay have become a serious problem for Hong Kong and this type of offences must be dealt with in a more serious and realistic manner.

4. In my view, there are some merits in his submissions. People have come to Hong Kong from the Mainland in large numbers and over the years many have chosen to stay for economic reasons and, for that reason, prepared to disregard the law. This has caused problems to Hong Kong in terms of financial resources, security and many other factors.

5. I am prepared to uphold the sentence of eight months which is probably rather on the high side but I do not consider it is manifestly excessive or wrong in principle. The appeal against sentence by the appellant is therefore dismissed.