HKSAR v. LIYANADURA, HIMALI JAYAMANNA SILVA

HCMA 563/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 563 OF 2003

(ON APPEAL FROM KTCC 3381/2003)

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J U D G M E N T

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1. The Appellant pleaded guilty to 3 charges, namely, making a false representation to an Immigration Assistant, contrary to s. 42(1)(a) of the Immigration Ordinance, Cap. 115 (Charge 1), using a false travel document for the purpose of Part II of the Immigration Ordinance, contrary to s. 42(2)(b) of the same ordinance (Charge 2) and, once again, making a false representation to an Immigration Assistant (Charge 3). She was sentenced to 2 months', 5 months' and 5 months' imprisonment respectively. Charges 2 and 3 were, however, ordered to run concurrently with each other, but consecutively to Charge 1, thus giving rise to a total sentence of 7 months' imprisonment. The Appellant appeals against these sentences.

2. Charge 1 was committed in 1994 when the Appellant came to Hong Kong using the passport of her cousin, but which bore her photograph. She did this apparently in the course of gaining employment as a domestic helper, for which she was still underage to secure a visa. Anyway, she achieved her purpose and stayed in work until July 1997 when she returned to Sri Lanka.

3. In January 2000, the Appellant returned to Hong Kong to work as a domestic helper, this time using her own identity. She soon fell into trouble with the law, however, and was terminated in March 2000. Moreover, she failed to turn up in court and left for Sri Lanka using another passport.

4. On 2 April 2001, the Appellant returned once more as a domestic helper, using a third identity and yet another false passport. In presenting this passport, she committed Charges 2 and 3.

5. All this came to light only after she was terminated by her then employer, overstayed and was eventually arrested by the police on 10 April 2003.

6. Turning to the Appellant's background, she is 24 years old

and a divorced woman. She has a daughter aged 8 and a mother aged 55 in Sri Lanka. While in Hong Kong, she accumulated 2 previous convictions dated 1996 and 2003 both of which were for theft. Today before me, she said that her mother in Sri Lanka is sick, that nobody is taking care of her, and that is the sole reason why she is appealing against her sentences.

7. For offences of the kind in question, sentences ranging from 6 to 18 months' imprisonment had been upheld against offenders who pleaded guilty and had clear records. For reasons rather convolutedly expressed, hence cumbersome to repeat, the Magistrate generously, I may say, adopted the starting point of 6 months for Charge 1 and 8 months for Charges 2 and 3 after plea, and finally reduced the sentences to those aforesaid.

8. These sentences cannot in any way be said to be wrong in principle or manifestly excessive. They have even taken into account some of the humanitarian considerations which the Appellant advanced in mitigation, such as the economic pressure that she and her family would face in case of imprisonment.

9. Today her appeal amounts to nothing more than an appeal for mercy. That mercy I cannot grant her. Her appeal is dismissed.