HKSAR v. Bautista Imelda V

HCMA 148/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 148 OF 2000

(ON APPEAL FROM SPCC 119/2000)

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J U D G M E N T

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1. This Appellant appeals against the sentence of 12 months' imprisonment that was imposed for each of 3 offences, the first Using an Unlawfully Obtained Travel Document for the purpose of Part II of the Immigration Ordinance, contrary to section 42(2)(b) of the Immigration Ordinance Cap. 115. The second charge was Making a False Representation to an Immigration Assistant Lawfully Acting Under or in the Execution of Part II of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance Cap. 115. The third offence was Furnishing False Particulars to a Registration Officer, contrary to regulation 19(2C) of the Registration of Persons Regulations Cap. 177.

2. The facts of the case showed that Appellant was arrested by an Immigration officer when she applied for an extension of stay. She was suspected to have been to Hong Kong under a different identity. She admitted that she was actually here under the particulars of her sister's passport. On the basis of a passport bearing her sister's particulars, but her own photo, she was permitted to come into Hong Kong as a domestic helper. She applied then for an identity card in the name of her sister.

3. It was submitted in mitigation before the Magistrate that Appellant worked originally for 6 years in Hong Kong as a domestic helper. She was found to take up unapproved employment and was therefore not allowed to work in Hong Kong again. For that reason, she returned to Hong Kong under a false name. The Magistrate noted that the terms of the sentence imposed by the Ordinance indicated the legislature regarded this as a serious offence.

4. The Magistrate took into account in Appellant's favour that she only intended to use the passport in Hong Kong to take up work as a domestic helper and he ignored the possibility that she could use the unlawfully obtained passport to enter other countries. He noted that her entry did not pose a threat to the local employment market.

5. Accordingly, he departed from the cases such as R. v Wong Kwai-pui [1988] HKLR 528 and R. v Wang Ju-wen [1989] 2 HKLR 26 and took 12 months' imprisonment as the sentence for respect of the 1st charge. He treated the 2nd and 3rd charges as being part and parcel of the same venture. He said he found no good reason to increase the Appellant's penalty because of those other charges that he ordered them to be concurrent.

6. Clearly the Magistrate could properly have ordered the sentence in respect of the 3rd charge to be consecutive to the sentence imposed on the first two charges.

7. The Magistrate has already treated this Appellant with some leniency; accordingly I do not propose to disturb the sentence and this appeal against sentence is dismissed.

8. I note that a complaint the Appellant made to this Court about her illness shows she is being treated through the Correctional Services Department. I have no doubt that if she shows other signs of illness she will be treated in the same fashion.