HKSAR v. ZHANG JINLIAN

HCMA288/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 288 OF 2009

(ON APPEAL FROM STCC 1279 OF 2009)

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JUDGMENT

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1. The appellant appeals against the sentences totalling 27 months’ imprisonment imposed upon her by Mr Jenkins at Shatin Magistrates’ Court following her plea of guilty to five charges, namely three charges of making a false representation to an immigration assistant under Part II of the Immigration Ordinance (Charges 1, 2 and 4), one charge of overstaying (Charge 3) and one charge of illegal remaining (Charge 5).

2. The facts admitted by the appellant in the Magistrates’ Court revealed that on three separate occasions, namely 15 March 2002 (Charge 1), 10 June 2006 (Charge 2) and 3 May 2007 (Charge 4), the defendant used a Chinese two-way permit bearing her cousin’s particulars to seek to enter Hong Kong.  On the latter two occasions she was refused permission to enter Hong Kong.  In addition, she had on 27 June 2006, entered Hong Kong legally but overstayed for about two months.  Charge 3 relates to this period of overstaying.  Finally on 22 August 2008, she sneaked into Hong Kong from the Mainland by boat, thereby committing the offence of illegal remaining which is the subject of Charge 5.

3. The magistrate was told in mitigation that the appellant was a farmer in the Mainland and the sole breadwinner of the family consisting of a disabled husband and four children.

4. Before me she had said that she has six children, aged 25, 23, 20, 17, 15 and 12.  

5. In so far as the charges of making a false representation to an immigrate assistant are concerned, the magistrate adopted a starting point of 18 months’ imprisonment on Charges 2 and 4 and 9 months’ imprisonment on Charge 1 because it was committed in early 2002 when courts were adopting lower starting point for this offence.  He discounted those sentences by one third to reflect the appellant’s pleas of guilty resulting in sentences of 12 months’ imprisonment on Charges 2 and 4 and 6 months’ imprisonment on Charge 1.

6. He passed a sentence of 15 months’ imprisonment on Charge 5 and 1 month’s imprisonment on Charge 3.

7. Having considered the totality of sentence he considered that the appropriate overall sentence was 27 months’ imprisonment.

8. I have listened to all that was being said by the appellant this morning.  I bear in mind that these sentences of imprisonment will result in hardship to her family, but this is a possibility she should have foreseen. 

9. On no less than five occasions the appellant has flouted or attempted to flout Hong Kong’s immigration regulations. 

10. I am satisfied that the sentences imposed by the magistrate were completely justified in the circumstances and I find no criticism can be levelled at the overall sentence of 27 months’ imprisonment that he imposed.  The appeal against sentence is therefore dismissed.