HKSAR v. KIMAYONG CARMEN D.

HCMA870/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 870 OF 2002

(On appeal from KTCC 5268 of 2002)

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J U D G M E N T

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1. This is an appeal against sentence only. The appellant was convicted on her own pleas for offences of (i) breaching a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115 ("the Ordinance"), for which she was sentenced to 18 months' imprisonment; (ii) using a false travel document, contrary to section 42(2)(b) of the Ordinance, for which she was sentenced to four months' imprisonment; and (iii) making a false representation to an immigration officer, contrary to section 42(1)(a) of the Ordinance, in respect of which she was sentenced to four months' imprisonment.

2. The sentences relating to the second and third charges were ordered to run concurrently but consecutively to that for the first. The result was an overall sentence of 22 months' imprisonment against which the appellant now appeals on the ground that the sentences are too severe.

3. The facts of the offences were as follows. Immigration officers acting on information apprehended the appellant. Their investigations revealed that she was a deportee who had come to Hong Kong using different identities. She first came to Hong Kong to work under her true name of Kimayong Carmen D. in 1987 but was repatriated in 1992 following convictions for using an identity card belonging to another and two offences of breach of condition of stay. She was fined and sent back to the Philippines.

4. Later that year, in July 1992, she returned here under a false identity, only to be discovered and prosecuted in 1996. She was convicted of using a false travel document and making false representations to an immigration officer, sentenced to six months' imprisonment and deported to the Philippines in January 1997.

5. In 1999, she acquired yet another forged passport and returned, presenting the forged passport to Immigration and claiming a new name. Once here, she obtained work as a domestic helper but was laid off in January 2001. She did not then leave but remained illegally until August 2002 when she was arrested for the present offences.

6. These offences represent her third appearance in Hong Kong courts. Clearly a determined lady who told the magistrate she returned because she needed money to educate her children. He noted however that they are now aged between 18 and 26.

7. I will deal firstly with the sentence imposed in respect of the appellant's breach of deportation order.

8. In the case of HKSAR v. Nguyen Chi Trung @ Dong Van Thanh (unreported), HCMA1095/2001, Beeson J said this :

" A sentence for breach of a deportation order, comparable to that for a plea to unlawfully entering and remaining, for a first charge, could properly be 18 months' imprisonment. Given the maximum sentence and the serious nature of the offence it would be difficult to fault sentences that were higher than 16 months."

With respect, I agree. The offence of being in breach of deportation order is regarded seriously by the courts. The appellant who must have been well aware of exactly what she was doing after her two previous visits here, has taken steps to get round an order removing her from Hong Kong, an order directed at her personally. "The gravamen of the offence", said Beeson J, "is that a person who has no right to be in Hong Kong and who has been prohibited from returning for a specified period disobeys that prohibition and returns to Hong Kong." A sentence of 18 months after plea cannot be criticized.

9. Dealing with the 2nd and 3rd offences, the authorities envisage a starting point ranging from six to 18 months' imprisonment, examples are HKSAR v. Chu Man [1999] 1 HKC 189, R. v. Yu Wing Wut, Crim. App. 346/1984, Nguyen Chi Trung¹ and HKSAR v. Cortez Emily Bisoy (unreported), HCMA457/2002. In the present case, the magistrate took a starting point of 12 months' imprisonment for each offence, and on the fact of this case that can hardly be said to be excessive. The sentences were ordered to be served concurrently to one and other, and that is appropriate while both offences are, as here, part of the same course of action.

10. The magistrate reduced the starting point from 12 months to eight to recognize the appellant's guilty plea. He then considered whether that eight months should be served consecutively to the 1st charge and if so, whether totality should come into play. He concluded that a consecutive sentence was appropriate but that he should reduce it to four months to acknowledge the overall criminality of the offences. In doing so, he was acting entirely in accordance with principle. The 1st offence is quite distinct from the 2nd and 3rd and a consecutive sentence was proper.

11. Having said that, by reducing the sentence to four months, the magistrate achieved an overall sentence of 22 months which he said "would serve the justice of this case". I agree. There are no humanitarian considerations in this case which may cause a further reduction.

12. The sentences imposed by the magistrate cannot in any way be said to be too severe, the appeal against sentence is dismissed.

¹ Nguyen Chi Trung (supra), at para.29