HKSAR v. VENTURA NANCY C.

HCMA 479/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 479 OF 2001

(ON APPEAL FROM KTCC 2191/2001)

____________

____________

_______________

J U D G M E N T

_______________

1. The appellant pleaded guilty to five charges of making a false representation to an Immigration Assistant contrary to section 42(1)(a) of the Immigration Ordinance, Cap.115.

2. The first charge was in relation to a false representation made on 11 March 1993. The second charge was committed on the 16th of January 1999 upon her arrival in Hong Kong, and the third charge related to the 10th of March 1999 when she applied for an extension of stay, subsequently, the fourth and fifth charges were when she applied to continue her employment with a madam Lam Shuk Han in Hong Kong.

3. The facts of this case is that the appellant came to work as a domestic helper in Hong Kong prior to 1992, but she had overstayed and was repatriated on 6 May 1992.

4. As she wanted to work in Hong Kong again, she then used her niece's birth certificate but with her photo to apply for a Philippine passport, and subsequently armed with that passport, she came to Hong Kong on 11 March 1993, and it was on that occasion that she represented the false identity to the Immigration Assistant upon arrival and that is the subject matter of the first charge.

5. She then worked for as a domestic helper for a madam Lam Shuk Han and applied for a Hong Kong identity card which recorded the same false particulars. The defendant continued to work as a domestic helper for madam Lam and when she arrived in Hong Kong on 16 January 1999, she represented again her false identity to the Immigration Department in her application for extension of stay on 10 March 1999. She was last permitted to work for madam Lam as a domestic helper until 11 March 2001.

6. But since the beginning of the year 2000, madam Lam was no longer in Hong Kong but had settled in the mainland. But madam Lam still promised to sponsor her stay in Hong Kong and the appellant had failed to report the termination of her contract to the Immigration Department. So upon the expiry of her visa, having obtained the supporting letter and a contract from madam Lam, she again represented her false identity and had falsely represented that she was still employed by madam Lam to an Immigration Officer when she applied for an extension of stay on 9 March 2001 which is the subject matter of charges 4 and 5. She was subsequently detained on 2 April 2001.

7. The appellant pleaded guilty before the learned Magistrate and was represented by a duty lawyer who mitigated on her behalf.

8. This morning the appellant was unrepresented and Mr Lee very fairly informed this Court that in mitigating on behalf of the appellant, the duty lawyer had not placed before the Magistrate the fact that the appellant have children in Hong Kong, who are aged 3 and 5.

9. The appellant told me this morning that they were living with her up to the time of her arrest and that now since her incarceration, they are living with their natural father. Mr Lee also informs the Court that the children will have no right to stay in Hong Kong and will be sent back to the Philippines if the appellant gives permission for her sister to take them back to the Philippines but at the moment they are staying with their father.

10. The offences that the appellant had pleaded guilty to are very serious and Hong Kong continually faces a serious problem with overstayers and people making false representations to the Immigration Department in order to facilitate their stay and the Courts have always said that deterrent sentences are necessary to combat the prevalence of this type of crime.

11. So having read the learned Magistrate's reasons, I can find no error in his assessment of the level of sentences that should be given in this case. Only that he did make a mathematical error as pointed out by Mr Lee and instead of the 28 months which he arrived at, it should have been 24 months. But from that total sentence of 28 months, he found it right to reduce it further by 10 months, because of the totality principle, on the grounds that the appellant only had one previous conviction from 1992 which was breach of condition of stay when she was deported and therefore she was due a degree of leniency.

12. Because of that mistake, it is only fair that this Court should give due consideration to the learned magistrate's reduction of 10 months and reduce the sentence from 24 months to 14 months.

13. Further, if the learned Magistrate been told about the special circumstances of the 2 young children that the appellant has in Hong Kong, he would no doubt have taken that into consideration and given a further reduction.

14. In those circumstances, I allow the appeal against sentence. The total sentence of the appellant is therefore reduced to one of 12 months' imprisonment, on humanitarian grounds.

15. The total sentence of 12 months will be apportioned in this way. On charge 1, the sentence is reduced to one of 2 months. On charge 2, the sentence is reduced to 2 months. On charge 3, the sentence is reduced to 2 months and that will be served consecutively. The sentence in charges 4 and 5 will be 6 months each and that will be served concurrently and that 6 months will be served consecutive to the sentences in charges 1 to 3.