HKSAR v. CHEN XIAOMEI

HCMA 803/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 803 OF 2003

(ON APPEAL FROM KTCC 4507 OF 2003)

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J U D G M E N T

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1. The Appellant has pleaded guilty to two charges, one of using a false travel document and one of making a false representation to an Immigration Assistant. The learned Magistrate sentenced the Appellant to a period of 8 months' imprisonment on Charge 1 and 8 months' imprisonment on Charge 2 and that the sentences to run concurrently. The Appellant was represented by a duty lawyer in the court below.

2. In the Notice of Appeal lodged by the Appellant, she said she wanted to appeal against both conviction and sentence. But on the hearing of this appeal, she does not seem to want to pursue the appeal against conviction because her ground of appeal is that she wants me to increase her sentence.

3. The facts were that the Appellant had entered Hong Kong on 14 May 2003 using a permit in the name of another person. She was given a permission to stay for 90 days. She was however arrested and convicted in June 2003 for breach of condition of stay and it was only during her incarceration at the Victoria Immigration Centre that these sentences came to light.

4. The Appellant had been in court before and been in prison before, once in January 2001 when she was sentenced to 2 months' imprisonment for breach of condition of stay and again in December 2002 for a similar offence. And again, the last time was in June 2003 where she again for a similar offence was given 10 weeks' imprisonment.

5. As far as the Notice to appeal against conviction is concerned, it is clear that under the law that she had pleaded guilty in the court below and I see no reason to allow her to retract that plea, so her Notice of Appeal against conviction is therefore dismissed.

6. As far as the sentence is concerned, the learned Magistrate did impose a relatively light sentence in view of the Appellant's previous record but I cannot say that it was wrong, so the Appellant's application to have a sentence increased is not something I can do. As far as the sentence is concerned it is not manifestly excessive, so the appeal is dismissed.