HKSAR v. SITI IFTAKUROHMAH

HCMA 586/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 586 OF 2013

(ON APPEAL FROM STCC 3438/2013)

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REASONS FOR JUDGMENT

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1. The appellant pleaded guilty to one charge of Breach of Condition of Stay, contrary to s 41 of the Immigration Ordinance, Cap 115 before magistrate Ms Merinda Chow. She was sentenced to 3 months and 3 weeks’ imprisonment. Her appeal against sentence has been dismissed and I now give the reasons.

2. The appellant overstayed in Hong Kong instead of leaving within two weeks of termination of her contract of employment.  She overstayed for a total of 4 years and 8 months before she surrendered to the authorities.

Grounds of Appeal

3. There are two main grounds of appeal advanced by counsel for the appellant:

(1)   the starting point of 6 months’ imprisonment adopted by the learned magistrate was manifestly excessive in all circumstances of this case; and

(2)   the one week reduction after the discount for her guilty plea was insufficient to reflect credit to be given to her surrender to the authorities.

Respondent’s reply

4. Counsel for the respondent submitted that whilst accepting that there was no evidence to show that the appellant had taken up employment during the period of her overstay, 4 years and 8 months overstaying was indeed a substantial period.

5. This court was referred specifically to the case of HKSAR v Ping‑Ay, Josie Eblogen, HCMA 634/2011, where Macrae J made the following comments in relation to the discount to be given on surrender to the authorities in cases of similar nature:

“9. . . . I am doubtful whether surrendering to the authorities should have quite the impact on sentence which it might have with other criminal offences. After all, unless an overstayer does surrender, he or she cannot lawfully leave the territory and will inevitably be picked up at an Immigration check point when trying to return home.”

6. The respondent submitted that a further one week discount had already reflected the appellant’s surrender in the present case, and the sentence of 3 months and 3 weeks is appropriate in the circumstance of the present case.

My Judgment

7. The Court of Appeal in HKSAR v MANALAD Tiongson Patricia [2002] 1 HKLRD 681 laid down the principle of sentencing relating to Breach of Condition of Stay offence, namely:

“In determining the sentence, the court would look at the length of the overstay. Taking up employment was an aggravating factor.”

8. Whilst there is no evidence of the appellant taking up any employment during the 4 years 8 months overstay period, that length of overstay could not be said to be short and the length of overstaying is inevitably a crucial factor in sentencing.

9. Counsel for the appellant submitted that the magistrate’s comment on the prevalence of the offence was not based on statistics.  The magistrate, having sat in a magistracy which deals with vast amount of immigration cases on a daily basis, was clearly entitled to comment on that.  (see HKSAR v Liu Quianqing, HCMA 103/2007, per Deputy Judge Toh (as she then was)).  In any event, other than a bare comment, the Reasons for Sentence did not show that the starting point was an enhanced starting point due to prevalence.

10. I have been referred to a number of cases for reference purposes on this topic.  The period of overstaying in following cases are most akin to that of the present case:

(1)   HKSAR v Leonarda Millo Simon, HCMA 1195/2003, overstayed 5 years 9 months, starting point of 10 months; and

(2)   HKSAR v Mahmood, Ghazanfar, HCMA 661/2005, overstayed 3 years 6 months, starting point of 3 months.

11. There are, in fact, other cases where the period of overstaying was shorter than the present case, but the starting point was either same if not higher than the present one.

(1)   HKSAR v Abdul Matin, HCMA 220/1999, overstayed 1 year 6 months, starting point of 9 months;

(2)   HKSAR v Kinanti, HCMA 328/2004, overstayed 1 year 3 months, starting point 6 months.

12. With all these in mind, I fail to be persuaded that the 6 months starting point adopted by the magistrate is manifestly excessive.

13. Counsel for the appellant stressed that unlike those overstayers who were driven by the motivation to be able to leave Hong Kong lawfully, as stated in the case of Ping‑Ay, Josie Eblogen, the appellant in this case in fact wanted to stay on in Hong Kong after her marriage in August 2013.

14. I do not see the difference between the appellant’s case and the others, as it is clear that in both instances those who surrendered were driven by necessity to do so rather than by sheer repentance.  Furthermore, the issue of the sufficiency of the one week further reduction for the appellant’s self surrender should not be viewed in isolation.  My overall consideration remains whether the sentence of 3 months and 3 weeks is an appropriate sentence in the circumstances of the present case.

15. Although in the case of Kinanti, a further one month discount was given for the factor of self surrender, one cannot lose sight of the fact that the period of overstaying here is nearly only one‑third of that in the present case.

16. The 3 months and 3 weeks sentence in the present case is neither wrong in principle nor manifestly excessive.