HKSAR v. YEUNG CHAU FONG

HCMA100/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 100 OF 1999

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J U D G M E N T

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1. The Appellant pleaded guilty to being a person permitted to land in Hong Kong by an Immigration Assistant by virtue of s.11 of the Immigration Ordinance but contravened a condition of stay in force - that she was limited to stay in Hong Kong until 8 June 1997, but remained in Hong Kong after that date.

2. She told the Magistrate, who sentenced her to two months' imprisonment suspended for three years, that the reason for her overstaying in Hong Kong was to allow her to continue to look after her children in Hong Kong. Her husband is working and if she is sent to prison, or she must depart Hong Kong if she was not to breach the law, then there would be nobody to look after her two young children, aged respectively five and three years. In either such case, the husband would have to stay at home to look after the children and he would go without an income and would be obliged to apply for the Comprehensive Social Security Assistance.

3. Mr Lam, for the HKSAR, has very helpfully produced two cases on breach of condition of stay for my reference. In R. v. Nithet Sarasit, M.A.No.323 of 1988 (10 May 1988, unreported), the former Chief Justice imposed a sentence of three months for a breach of condition of stay by a Thai national. The facts of that case and the considerations in it are very different from the present appeal. In R. v. Tseung Sau Tao, M.A.No.955 of 1992 (2 March 1993, unreported), Wong J substituted a sentence of six months' imprisonment for the appealed sentence. That case is also very different from the present one because the appellant there came to Hong Kong and overstayed for the purpose of finding out whether her husband in Hong Kong had a mistress. But the appellant there overstayed for 41/2 years after finding out that the husband did have a mistress. In his judgment, Wong J mentioned that there was no tariff for overstaying offences and sentences ranged from fines to imprisonment.

4. These two authorities are the only ones that Mr Lam, despite his diligence, could find for me. During the adjournment, I have not been able to find any authority on the point either.

5. Bearing in mind the social circumstances that might have changed after the resumption of the exercise of sovereignty by China over Hong Kong, and that there is no tariff or guideline set by any court in respect of offences of a similar nature, I consider this a proper case for me to reserve the appeal to the Court of Appeal pursuant to s.118(1)(d) of the Magistrates Ordinance, Cap.227, and I do so reserve.