HKSAR v. CHEN CHUNHUA

HCMA1053/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1053 OF 2008

(ON APPEAL FROM STCC7609 OF 2008)

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J U D G M E N T

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1. This is an appeal by the appellant against the sentences, totalling 8 months' imprisonment, imposed upon her by Mr Jenkins at Shatin Magistrates' Court following her pleas of guilty to one charge of using a false two-way Chinese permit (Charge 1), a related count of making a false representation to an Immigration Assistant (Charge 2) and a charge of having overstayed in 2008 (Charge 3).

2. The first two charges relate to her entry into Hong Kong on 12 March 1998.  On that occasion she used a Chinese permit which bore her photograph but the particulars of another person.  She falsely represented that she was that other person when she entered Hong Kong.  Following her conviction on 12 January 2000 for breach of her condition to stay, she was given a suspended sentence and was repatriated to the Mainland.

3. Over six years later, on 28 September 2006, she entered Hong Kong again, lawfully under a Chinese permit in her true name.  She was permitted to remain for 7 days but overstayed by just over 2 years until 27 October 2008 when she surrendered to the police.

4. The magistrate stated that he would normally have imposed sentence of 12 months' imprisonment on each of the two charges to run concurrently in the event of pleas of guilty, but that, as prior to February 2003 lower starting points of 9 to 12 months' imprisonment had frequently been adopted, he would adopt a starting point of 9 months' imprisonment on each of those charges which he would discount by one-third to reflect the appellant's pleas of guilty.  He therefore imposed sentences of 6 months' imprisonment in Counts 1 and 2 to run concurrently.

5. In so far as the overstaying charge was concerned, the magistrate bore in mind that the appellant had had a similar conviction in 1998 for which she had been sentenced to a suspended term of imprisonment.  He also bore in mind the long period of overstaying (just over 2 years).  He adopted a starting point of 15 weeks' imprisonment which he reduced by one-third to reflect the appellant's pleas of guilty and discounted the sentence by a further 2 months to reflect the appellant's surrender to the police.  He ordered the resulting 2 months' imprisonment to run consecutively to the concurrent sentence in Counts 1 and 2.

6. The appellant does not criticise the sentences imposed by the magistrate which were in no way too severe in the circumstances known to the court at the time.  However, within a week of sentence being passed on 4 November 2008, the appellant learned that her husband had unexpectedly fallen very seriously ill.  He underwent an emergency hospital treatment but sadly died on 15 November 2008.  The appellant has produced a copy of the cremation certificate and the hospital report.  She says that his medical treatment cost over RMB100,000.  She asks to be permitted to return to the Mainland to be with her three children, two of whom are still students, and so she can try to deal with her substantial debts.  She promises not to offend again.

7. I am persuaded that, as an act of mercy, the appellant should be permitted to return to her children without delay and be in a position to attempt to sort out her financial affairs.  I accordingly allow the appeal to the extent that I reduce the sentences on Counts 1 and 2 to 3 months' imprisonment on each charge to run concurrently with each other.  This will have the effect of reducing her total sentence to 5 months' imprisonment and should result in her immediate release.