R. v. MARIA P. FLOR

MAGISTRACY CRIMINAL APPEAL NO. 1623 OF 1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

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J U D G M E N T

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1. On 28th November 1994 at South Kowloon Magistrates' Court, the Appellant pleaded guilty to two charges. The first was attempting to steal, and the second was being in Hong Kong in breach of a deportation order. She was sentenced to 12 months' imprisonment on the first charge and 9 months' imprisonment on the second charge consecutive, amounting to 21 months' imprisonment in all. She now appeals against her sentences.

2. The brief facts, which the Appellant admitted, were that an order for her deportation from Hong Kong for life had been made in June 1992, and she had been deported to the Philippines in October 1992. By November 1994, she had returned to Hong Kong under another name, and on the day of her arrest, she was seen trying to open the handbag of a woman at the Star Ferry Terminal in Tsim Sha Tsui.

3. The Appellant is 59 years old and comes from the Philippines. She had two previous convictions in Hong Kong for theft and attempted theft. She was sentenced to 6 months' imprisonment and 9 months' imprisonment respectively, though it looks as if she had committed the second offence before being sentenced on the first offence. In mitigation, it was said that she was divorced and living with her son in the Philippines, and that she had arrived in Hong Kong only six days before her arrest in order to buy clothes to resell in the Philippines.

4. The magistrate correctly reminded herself of the sentencing guidelines in Vy Van Kien [1991] 1 HKLR 422 for pickpocketing offences. On the application of those guidelines, giving due weight to the Appellant's plea of guilty, the sentence of 12 months' imprisonment on the first charge cannot be faulted. The magistrate also correctly reminded herself that the maximum penalty on summary conviction for the offence of being in Hong Kong in breach of a deportation order is 3 years' imprisonment. In my view, the Appellant's entry into Hong Kong under an assumed name when she knew that there was a life-time prohibition on her coming to Hong Kong justified, again after giving credit for her plea of guilty, a sentence of 9 months' imprisonment. I agree with the magistrate that the offences, being separate and distinct, justified consecutive sentences, and I agree with the magistrate that 21 months' imprisonment in all was appropriate for what the Appellant did.

5. However, the Appellant is, as I have said, 59 years old. She does not appear to me to be a young 59. I get the impression that coping with a prison sentence is for her an exceptionally hard ordeal. Although she thoroughly deserved the sentences which the magistrate imposed, and although I do not fault the magistrate at all for imposing them, I am prepared to reduce her sentences because of what I suspect is the exceptional hardship which she experiences in having to serve relatively lengthy sentences of imprisonment at her age in a prison in what is for her a foreign country.

6. I therefore propose that as an act of mercy 6 months of the 9 months' imprisonment imposed on the second charge be served concurrently with the sentence of 12 months' imprisonment on the first charge. That means that she will serve 15 months' imprisonment in all. To that extent, this appeal is allowed.