HKSAR v. NGUYEN THI TAP

HCMA406/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.406 OF 2002

(ON APPEAL FROM ESCC 904 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence. The appellant pleaded guilty before a magistrate to an offence of using an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177, in respect of which she received 15 months' imprisonment; and to an offence of breaching a condition of stay by overstaying her permitted period of stay in Hong Kong by some nine months, contrary to section 41 of the Immigration Ordinance, Cap.115, in respect of which she received two months' imprisonment to be served concurrently with the sentence imposed in respect of the first charged offence. She accordingly received a total sentence of 15 months' imprisonment.

2. At the time of committing these offences, the appellant was in breach of a conditional discharge imposed upon her at Tuen Mun Magistracy for an offence of theft. One of the conditions of that discharge was that she was bonded in the sum of $2,000. There was one month of the period of the conditional discharge still to run. The magistrate made no order in respect of that breach of the conditional discharge due to the fact that the period had almost expired.

3. Before me, the appellant does not complain that the sentences imposed by the magistrate were too severe. In that regard, I think she is quite sensible. The sentences were plainly not too severe and were completely in accordance with the principles of HKSAR v. Chan Man Mo, HCMA1059/1999.

4. Instead, the appellant says that there are humanitarian reasons as to why her sentence should be reduced. Those reasons as advanced by the appellant are that she has one six-year-old son still in her native country of Vietnam. Her son presently is being looked after by her brother because her husband, the child's father, is a drug addict and is incapable of looking after him. The appellant is concerned that her brother may not continue, or may not be able to continue, looking after her son, and that her son may be in some jeopardy at some stage during the course of her 15 months' sentence. She has other siblings in Vietnam but they are not economically able, she says, to look after her son, nor can her mother and father, who she says, are too old and ill.

5. Sentences can be reduced on appeal for humanitarian reasons, but in order for that basis of an appeal to succeed, those humanitarian reasons must be exceptional.

6. In the present case, the difficulties experienced by the appellant in respect of her child in Vietnam occur very frequently to prisoners, particular female prisoners from overseas. It is unfortunate, but these reasons as advanced are far from exceptional.

7. In my view, there is no basis for this appeal to succeed in respect of any reduction of sentence because of those reasons and the appeal against sentence is dismissed.