HKSAR v. DEL ROSARIO, ROSEMARIE MERCADO

HCMA 894/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 894 OF 2003

(ON APPEAL FROM TWCC 1496/2003)

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J U D G M E N T

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1. The Appellant had pleaded guilty to one charge of breach of deportation order and was sentenced to 6 months' imprisonment. The Appellant now appeals against the sentence.

2. The facts were that the Appellant was the subject of the deportation order banning her from coming into Hong Kong for life. She was deported to the Philippines in 1995. She entered Hong Kong via the Hong Kong International Airport in 1998. She had multiple entries at Lo Wu Border Crossing Point. She stayed in Hong Kong, exited and re-entered Hong Kong for nearly 5 years.

3. These were taken into account by the learned Magistrate when he sentenced the Appellant, but it is unfortunate that in the concluding paragraph of his Statement of Findings he had this to say:

"Taking all the circumstances into consideration, I was of the view that 16 months' imprisonment was the appropriate starting point. There being no mitigation factors, the Appellant was sentenced to 16 months' imprisonment."

4. The Appellant is unrepresented and her ground is that she wishes to have a shorter sentence which she can go home and take care of her family and she also appeals on the ground that she had pleaded guilty and she considered the sentence was too long.

5. It is clear from the learned Magistrate's Statement of Findings, that he had not considered her plea of guilty. Counsel for the Respondent submitted that 16 months' imprisonment after plea is appropriate for a charge of this nature particularly taking the facts of this case into consideration. I agree with her that the cases show that 16 months is not a day too long but this is not an application of the prosecution to review the sentence. This is an appeal against sentence by the Appellant.

6. Counsel for the Respondent submits that it is probably a slip of the tongue by the learned Magistrate. It certainly does not appear to be so because the learned Magistrate not only said that 16 months was the appropriate starting point, he said that there were no mitigating factors. So I am left with the unfortunate conclusion that the learned Magistrate had simply forgotten that the Appellant had pleaded guilty.

7. Since this is an appeal against sentence, I therefore have to allow the appeal on that basis that she had not been given the appropriate discount for her plea and I will have to re-sentence the Appellant again on the facts.

8. It is clear that in the case of the HKSAR v Riyaz Mohamed, HCMA 321 of 2003 that the appellate court did not consider a starting point of 27 months to be overly long. It is also clear from the other cases that the respondent had submitted that on a charge of this nature, it is accepted that a sentence of higher than 15 months after plea is not inappropriate.

9. But I have to consider that this was a mistake made by the learned Magistrate, although the circumstances would justify a 27 months' starting point - taking into account the fact that now it is on appeal, I would therefore adopt a lower starting point of 21 months' imprisonment. So giving the appropriate discount to the Appellant. She is therefore sentenced to 14 months' imprisonment.

10. I want to make it clear that this is not a precedent for future sentencing on these charges. This is merely because of the mistake made by the learned Magistrate and it is my view that the Appellant should be given some discount in the circumstances.