HONG KONG SPECIAL ADMINISTRATIVE REGION v. SZE Chun-ping

IN THE HIGH COURT OF
THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 326 OF 1997

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R E A S O N S  F O R  D E C I S I O N

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1. The appellant pleaded guilty to one count of Breach of Condition of Stay contrary to the Immigration Ordinance. The actual length of whole stay was in excess of for 1½ years. The learned Magistrate in the court below imposed a fine of $5,000. You were, however, unable to come up with the money and subsequently, having appeared before the learned Magistrate again, the fine was set aside and a sentence of three month's imprisonment suspended for two years was substituted.

2. The reason given by the learned Magistrate for the sentence was:

"The Defendant told me she was unable to pay the fine. I set aside fine and impose a sentence of three month's imprisonment, suspended for two years."

3. It appears that the learned Magistrate was not aware of the case of R v CHAN Yuk-choi, MA No. 390/95, in which Sears J stated:

"It is also wrong in principle. A Defendant must be sentenced for the offence for which he comes before the court. There is not one law for the rich and one law for the poor. It is wrong to sentence a person to imprisonment, not if the offence does not merit prison but because he or she is not able to pay a fine."

4. I am of the view that this is the correct statement of law and the sentence was imposed by the learned Magistrate without clear reference to the law. For the reasons given, the sentence of three months' imprisonment suspended for two years is set aside.