HKSAR v. CUCAL MERLITA SORIANO

HCMA998/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.998 OF 2001

(ON APPEAL FROM WSCC 10146/2001)

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J U D G M E N T

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1. This is an appeal against sentence only. The appellant was sentenced to two months' imprisonment upon her pleading guilty to an offence of overstaying in Hong Kong beyond the period she was permitted to stay by the conditions of her landing in Hong Kong, contrary to section 41 of the Immigration Ordinance, Cap.115.

2. The period of her overstaying amounted to some three years seven months. She had surrendered herself to the authorities following her release from hospital where she had received treatment after, apparently, a motor vehicle struck her.

3. She appeals the sentence of two months' imprisonment as been too severe In asserting that, she urges upon me that she is ill in two respects. Firstly, she said she suffers back-pain following the motor vehicle accident in Kennedy Town in about June or July of this year. In respect of the injury she received to her back on that occasion she has undergone orthopedic surgery in Caritas Hospital.

4. She says in addition to that, she suffers presently in some degree from tuberculosis. In that regard, she has told me that the Correctional Services Department are aware of her suffering this illness and are treating her for it.

5. In bringing these matters to my attention as the basis for her appeal against sentence, she has provided no medical records. But even accepting what the appellant says in regard to her physical condition, I do not think that any disability she suffers presently from her injuries or illness is such as to render the sentence too severe.

6. Even if the appellant does suffer from these disabilities in the degree she says, they are presently being treated, or are at least treatable by the Correctional Services Department. They are not such as to be exacerbated by her present imprisonment, so as to suggest her present sentence imposes such hardship upon her to render the sentence of two months too severe in her circumstances. Her back injury in fact was taken into account by the sentencing magistrate.

7. In my view, the sentence imposed by the magistrate, as he said at the time of sentencing, is lenient. The appellant overstayed for three years and seven months. That is a very long time. The primary factor in cases of this sort, so far as sentence is concerned, is usually the length of the period which the offender has overstayed. There is no tariff in regard to sentencing in these cases, it is true. But as a matter of principle, sentencing courts have consistently taken into account the period of overstaying as being the primary factor relating to the starting point of sentence.

8. In The Queen and Chong Yuk Fun, Magistracy Appeal No.129 of 1990, Ryan J dismissed an appeal against a sentence of 10 weeks' imprisonment for a mainlander who had overstayed in Hong Kong for that same period of 10 weeks. In The Queen v. Tseung Sau Tao, Magistracy Appeal No.955 of 1992, the appellant had overstayed in Hong Kong for four and a half years. In that case, the imposition of a sentence of six months' imprisonment was appropriate.

9. In my view, given the period of overstaying in this case, a sentence of two months' imprisonment cannot be said to be too severe. Accordingly, the appeal is dismissed.