HKSAR v. LAM HON WING

HCMA 1175/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1175 OF 1999

(ON APPEAL FROM WSC 14747/1999)

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J U D G M E N T

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1. The Appellant in this case appeals against a sentence of 12 months for an offence of overstaying. The facts of the case show that the Appellant applied for an extension of stay on 15 February 1999 to the Immigration Department but was found to have overstayed since 1975.

2. He pleaded guilty to the charge of Breach Condition of Stay and was sentenced to imprisonment for 1 year by the Magistrate. The Magistrate was aware of fact that the Appellant had overstayed for such a long period and he assessed the sentence on the basis that this was an unusually long period. However various matters were not before the Magistrate at the time he dealt with the case.

3. Inquiries afterwards indicated the facts of the case were rather unusual. The Appellant had come to Hong Kong on a China Exit Permit on 20 September 1973. He was permitted to remain until 20 September 1975. During the period he made some attempts to regularise his position, after he became entitled to remain in Hong Kong, but had not proceeded with the necessary documentation.

4. Had he complied with the required procedure his stay would have been regularised and would have been approved by the Immigration Department. In any event, he would have been entitled to permanent citizenship after 7 years stay in Hong Kong. The offence therefore falls slightly outwith the usual category of an overstayer who has no right to stay here. Given that position, it appears to me that if the Magistrate had been advised of these facts he might not have imposed such a long sentence.

5. I note that the Appellant has been in custody since 17 November 1999 and taking all the facts into account, including the information available to me from the Immigration Department, I consider that justice will be served in this case if a sentence of imprisonment was imposed of a length that would enable Appellant to be immediately released.

6. Accordingly, I order an immediate release of the Appellant. The appeal is allowed.