HKSAR v. SABITRA YONGHANG

HCMA 141/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 141 OF 2012

(ON APPEAL FROM STCC 4483/2011)

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REASONS FOR JUDGMENT

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1. The appellant was convicted after trial of two counts of breach of a condition of stay and one count of making a false representation to an Immigration Assistant. She was sentenced to a total of 23 months’ imprisonment. Her appeal against both conviction and sentence has been dismissed. Now I give my reasons.

2. The prosecution case against the appellant is simply this.  The appellant was observed by Immigration officers to be performing odd job duties in a restaurant, namely, washing dishes whilst wearing an apron.  She was asked to produce proof of her identity.  She produced a photocopy of a Hong Kong Identity Card.  She told PW2 in English that her name was Yakso Sita as shown in the copy.  PW2 found that the appearance of the appellant did not match with the photo.  After enquiries, the appellant led the team of Immigration officers to her home in order for her to produce her passport.  It was upon their arrival there that the appellant made an admission to the effect that the photocopy of ID card produced did not belong to her, and her real name was that appeared in her passport.  She further admitted to have used that photocopy to obtain a job at the restaurant, which she knew full well she was not entitled to, and that her employment contract with her previous employer had expired in April 2005.

3. As the appellant objected to the admissibility of what she said under caution, the alternative procedure was adopted and she gave evidence on the special issue.  The magistrate ruled her admissions voluntary and admissible.

The defence case

4. The defence case is that the appellant was misled by the Immigration Department to believe that her stay in Hong Kong was legitimate.  She was only at the restaurant to meet a friend, who asked her to put on the apron, and then left in a hurry.  She denied that she was ever washing any dishes as the Immigration officers alleged.  She was arrested but she neither make any admission nor answer those questions in the interview as recorded.  During the second interview she was tired and felt dizzy and did not knew what happened.  She only signed according to indication by PW2.

Grounds of appeal

5. The appellant, by her home made grounds, and her submission before me, maintained her innocence and sought to repeat her evidence in the magistracies.  She reiterated that it was the inaction of the Immigration Department which led her to believe that she was entitled to stay in Hong Kong.

6. The appellant complained that her sentence was too severe, and that ever since her sentence she was under pressure and was unwell.  She also submitted that she was unable to contact her relatives since her incarceration.  She urges the court to allow her to be released as soon as possible.

Respondent’s reply

7. Miss Chiu, on behalf of the respondent, submitted that the magistrate had fully assessed and evaluated all the evidence before him.  The magistrate was entitled to accept the prosecution evidence and reject that of the appellant.  The respondent also submitted that being unwell or under pressure are not grounds to disturn an otherwise proper sentence.  The sentences were neither wrong in principle nor manifestly excessive, and so the appeal must be dismissed.

My judgment

8. Magistracies appeals are rehearings in the sense that I have to decide this appeal on the evidence as the magistrate had seen and heard, with the assistance of the transcript and the Statement of Findings.

9. After assessment of the evidence, the magistrate, in my view, quite properly rejected the defence evidence.  The magistrate has seen and heard the witnesses and was entitled to form the view as he did.  What the appellant said in evidence lacks common sense and was unworthy of belief.  I would have come to no different conclusion had I been the trial magistrate.  There is ample evidence to support the conviction.

10. I now turn to the appeal against sentence. The appellant had overstayed from 2005 to 2012, a total of seven years.  It was not a case of self surrender.  The appellant was found at a workplace.  She had used a photocopy of another person’s ID card to obtain a job and to mislead the Immigration officers when they made enquiries with her.  She has fought and lost the trial and therefore, was not entitled to the one‑third discount.  I do not see how the magistrate could be criticised for imposing the sentences as he did.  In sentencing the appellant the magistrate had taken into account totality. 

11. My sole concern is whether the sentences in the present are excessive.  Personal circumstances of the appellant as advanced at the appeal hearing do not constitute any mitigating or humanitarian grounds for me to disturb the present sentences. 

12. The overall sentence of 23 months is not a day too long.