HKSAR v. CHEUNG MAN LAI

HCMA839/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.839 OF 2006

(ON APPEAL FROM ESCC 3245 OF 2006)

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J U D G M E N T

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1. The appellant pleaded guilty to one charge of ‘unlawfully remaining in Hong Kong’, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115.  She was sentenced to 12 months’ imprisonment.  She now appeals against sentence. 

2. She was intercepted by police officers and failed to produce any ID card.  She admitted that she came to Hong Kong illegally that morning.

Grounds of appeal

3. The appellant alleged that on this occasion she came to Hong Kong to look for her husband who is a Hong Kong resident.  She came here illegally to question him about his extra-marital affair and to chase after maintenance.  She asked to be able to go back to China as soon as possible to take care of her children.

Respondent’s reply

4. Counsel for the respondent submitted that the usual tariff for unlawful remaining offence is one of 15 months’ imprisonment.  With her previous record, the magistrate was ‘too generous and kind’ to give her a 3 months’ discount from the normal tariff.  Her family circumstances were fully known to her before she came to Hong Kong and she must be fully aware of the consequence of illegally remaining in Hong Kong, these do not constitute any humanitarian grounds.

My judgment

5. The normal tariff for unlawful remaining charge is an immediate custodial sentence of 15 months’ imprisonment.  According to the appellant’s previous record, her first conviction was back in 1994.  She kept coming back to Hong Kong albeit that she had received imprisonment sentences.  She came to Hong Kong with different names.

6. The magistrate took into account her family circumstances at the time of sentencing and imposed a sentence of 12 months’ imprisonment which is lower than the 15 months’ tariffs.  In the Statement of Findings, having given the matter further thoughts, and having regard to the authorities to the effect that repeated offenders of unlawful remaining offences should receive an upward adjustment to 18 or 21 months’ imprisonment, the magistrate said that he realized that he had erred in sentencing in the present case, by imposing a sentence less than the authorities indicated.  The appellant is a repeated offender of immigration offences.  These are all deliberate acts to flout immigration laws in Hong Kong.

7. The sentence of 12 months’ imprisonment, in the light of her previous similar convictions, is an extremely lenient one.  She was indeed lucky to have persuaded the magistrate to sentence in the way he did by her claim of family circumstances.  Even if the magistrate increased the sentence from the normal 15 months to 18 months, he could not be criticised.  Whilst I do have the power to increase the sentence, I am not going to exercise the power this time.  Appellant, consider yourself extremely lucky in this case.  There is nothing in this appeal and is dismissed.