HKSAR v. TAGULAO MARCELITA A

HCMA 528/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 528 OF 2002

(ON APPEAL FROM KCCC 7389/2002)

____________

____________

_______________

J U D G M E N T

_______________

1. This Appellant is a woman in her late 30s. She faced one charge of breach of condition of stay, contrary to s. 41 of the Immigration Ordinance, Cap. 115.

2. The particulars of offence were that although she only had permission to stay in Hong Kong until 7 December 1993, she was still here on 13 March 2002. On 13 May 2002, she appeared before Peter Lo, Esquire in the Magistrate's Court at Kowloon City, pleaded guilty, admitted the brief facts put forward by a prosecution and was sentenced to 8 months' imprisonment. She now appeals against sentence. The brief facts which she admitted were these:

"On 13 March 2002, the Defendant surrendered to the Immigration for having overstayed.

2. Enquiries reveal that the Defendant came here in 1988 as a domestic helper and was last permitted to remain as a visitor until 7 December 1993. However, the Defendant did not leave on or before this date as required and had since overstayed for 8 years and 3 months."

3. Two perfected grounds of appeal against sentence have been filed on the Appellant's behalf. They read:

"Ground 1

1. In sentencing the Appellant to a term of 8 months' imprisonment, the Learned Magistrate erred in failing to give credit to the Appellant for the following factors:

(1) The Appellant had a clear record; and

(2) She surrendered herself to the authorities.

Ground 2

2. In all the circumstances of the case, the sentence of 8 months' imprisonment is manifestly excessive."

4. The two factors set out in Ground 1 were urged in mitigation before the Magistrate and he says in his Reasons for Sentence that he had considered the mitigation urged on the Appellant's behalf. However, it would appear that the only mitigation for which a Magistrate gave the Appellant credit is her guilty plea. This is because he took a starting point of 12 months' imprisonment, which seems to be based solely on the length of overstaying, and then gave a 4-month discount, in other words, the usual one-third discount for the Appellant's guilty plea.

5. The Appellant's clear record counts for little or nothing since she was committing a continuing offence, i.e. overstaying, for 8 years and 3 months leading up to her surrender to the Immigration Service. But that surrender is mitigation for which she is deserves some of credit. Apart from that, I do not think that the Appellant's sentence is manifestly excessive.

6. What I will do is to reduce the Appellant's sentence by 2 months to give her credit for surrendering to the Immigration Service. Accordingly, this appeal is allowed so as to reduce the sentence by 2 months from 8 months' imprisonment to 6 months' imprisonment.

7. I should add that in fact Ms Leung for the prosecution does not dispute that credit should be given to the Appellant for having surrendered to the authority.