THE QUEEN v. PINA NADIA M.

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H E A D N O T E

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SENTENCE - BREACH OF CONDITION OF STAY - SIX MONTHS REDUCED TO TWO AND SUSPENDED SENTENCE ACTIVATED.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 409 OF 1989

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J U D G M E N T

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1. The appellant pleaded guilty before Mr Hon at Western Magistrates Court to breach of a condition of stay, contrary to Section 41 of the Immigration Ordinance, Cap. 115 and was sentenced to nine months imprisonment.

2. She arrived from Manila on 28th September, 1988 and was permitted to remain until 5th October, 1988 She was arrested on 27th February, 1989.

3. In May, 1988, the appellant was convicted of the same offence and also possession of an unlawfully altered passport. She was sentenced to four months imprisonment suspended for 18 months.

4. Mr Hon activated these sentences and ordered them to run consecutively to the nine months sentence. The appellant thus faces a sentence of 13 months.

5. Counsel for the Crown has cited R v. Sarasit MA 323/88, in which the facts have some similarity to this case. The appellant was a Thai girl, who had overstayed for two months.  She also was in breach of a suspended sentence for the same offence. The magistrate had sentenced her to six months imprisonment, to run consecutively to the activated one month suspended sentence.

6. Yang CJ considered the six months sentence manifestly excessive and wrong in principle and reduced it to one of two months. I respectfully agree with this approach.

7. Had this appellant been convicted last year only in respect of the overstaying offence, a four month suspended sentence would have been too severe. One month would have been more appropriate. The false passport charge is much more serious and fully merited four months. The magistrate was right to activate these suspended sentences.

8. The appeal is allowed and the sentence reduced to two months.