HKSAR v. Gunarti

HCMA 407/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 407 OF 2016

(ON APPEAL FROM FLCC NO 2696 OF 2016)

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J U D G M E N T

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1.The appellant, Ms Gunarti, was convicted upon her own plea of one count of breach of condition of stay. She was sentenced to 6 months’ imprisonment. As the appellant committed the offence during the suspension period of her 2 weeks sentence in STCC 5350/2011, the sentencing magistrate activated the 2 weeks’ sentence but ordered it to run concurrently with the 6 months’ imprisonment, thus making a total of 6 months’ imprisonment. The appellant appeals against her sentence.

2.The facts admitted by the appellant revealed that she was a former domestic helper.  She was allowed to stay in Hong Kong until 1 October 2011.  She was found to have overstayed when she applied for renewal of her visa on 20 November 2011.  After relevant legal proceedings were brought against her, ie STCC 5350/2011, the appellant was required to report to the Immigration Department on 28 December 2011.

3.However, the appellant went missing and could not be located. Eventually on 28 June 2016, the appellant was arrested by the police for having overstayed.  She was handed over to the Immigration Department for investigation.  The appellant admitted under caution that she was aware of her condition of stay.  She was also aware that she had to report to the Immigration Department on 28 December 2011.  She failed to do so as required and she overstayed in Hong Kong since 29 December 2011 until her arrest on 28 June 2016.  She had overstayed for a total of 4 years and 5.5 months from 29 December 2011 to 28 June 2016. 

4.The appellant was convicted of one charge of breach of condition of stay on 23 December 2011 and she was given 2 weeks’ imprisonment, but the imprisonment was suspended for a period of 3 years (STCC 5350/2011).

5.The appellant was legally represented in FLCC 2696/2016.  The appellant’s counsel told the magistrate in mitigation that the appellant is aged 35, separated from her husband, she has no family members in Hong Kong. Back in Indonesia the appellant has an 18 years old son and her mother there.  She had been cooperative with the Immigration Department, she admitted her offence almost immediately.

6.The magistrate had considered two authorities before sentence.  The first authority is HKSAR v Leonarda Millo Simon HCMA 1195/2003.  The appellant in that case had overstayed for over 5 years.  She pleaded guilty and was sentenced to 10 months’ imprisonment.  Her appeal against sentence was dismissed.  In the second authority considered by the magistrate, ie HKSAR v Palathanthirige, Waruni Prasanthika HCMA 541/2015.  The appellant in that case had overstayed for over 5 years and 7 months.  She was sentenced to 5 months’ imprisonment.  On appeal the court considered a starting point of 9 months’ imprisonment was on the high side but was still within reasonable range.

7.The sentencing magistrate said at paragraph 8 of the reasons for sentence:

“I have considered everything that has been put forward in mitigation, the facts of the case, and in particular the authorities above. I would adopt a starting point of 9 months and reduce it by a third. I see no other mitigating factor exists that warrants a further reduction of the sentence, therefore the appellant is sentenced to six months’ imprisonment.”

8.The appellant appears in person before me today.  She told me her ID documents and passport were kept by the Immigration Department and she had no money to buy an air ticket for her return trip to Indonesia.  During the period of her overstay she was supported by her friends in Hong Kong.

9.Ms Ho for the respondent submits that the ground put forward by the appellant, ie she did not have money to buy air tickets is not a valid ground for appeal against sentence.  Ms Ho submits that the sentencing magistrate had taken into account all the mitigating factors put forward, the facts of the case and the relevant authorities.  Ms Ho referred me to the case HKSAR v Siti Iftakurohmah [2014] 4 HKC 6. 

10.In the case Siti, M Poon J says at paragraphs 7 and 8 of the judgment:

“7. The Court of Appeal in HKSAR v MANALAD Tiongson Patricia [2002] 1 HKLRD 681, [2001] HKCU 1299 laid down the principle of sentencing relating to Breach of Condition of Stay offence, namely:

‘In determining the sentence, the court would look at the length of the overstay. Taking up employment was an aggravating factor.’

8. Whilst there is no evidence of the appellant taking up any employment during the 4 years 8 months overstay period, that length of overstay could not be said to be short and the length of overstaying is inevitably a critical factor in sentencing.”

11.In Siti the appellant had overstayed for 4 years and 8 months.  A starting point of 6 months’ imprisonment was adopted by the magistrate. After giving the appellant one-third reduction on account of a guilty plea and further 1 week discount for her surrender, the magistrate sentenced the appellant to 3 months and 3 weeks’ imprisonment.  Her Ladyship referred to a number of authorities in her judgment, namely:

(1)    HKSAR v Leonarda Millo Simon HCMA 1195/2003 (the first authorities considered by the magistrate in the present case), as said, the appellant in that case overstayed for 5 years and 9 months and was sentenced to 10 months’ imprisonment.

(2)    HKSAR v Mahmood, Ghazanfar [2005] HKCU 1117 HCMA 661/2005.  The appellant in that case had overstayed for 3 years and 6 months.  A starting point of 3 months was adopted and it was reduced to 2 months on account of the plea. 

(3)   HKSAR v Abdul Matin [1999] HKCU 661, HCMA 220/1999.  The appellant overstayed for 1 year and 6 months, a sentence of 2 months’ imprisonment after plea was considered to be extremely lenient.

(4)   HKSAR v Kinanti [2004] HKCU 570 HCMA 328/2004.  The appellant in that case had overstayed for 1 year and 3 months. A starting point of 6 months’ imprisonment was taken and it was reduced to 4 months on account of her plea and further reduced by 1 month because the appellant surrendered.

12.With all these cases in mind, Her Ladyship did not find a starting point of 6 months, as adopted by the magistrate, to be manifestly excessive. 

13.In the second authority considered by the magistrate, ie HKSAR v Palathanthirige, Waruni Prasanthika HCMA 541/2015, the appellant in that case had overstayed for over 5 years and 7 months.  On appeal, A Wong J considered the starting point of 9 months for the overstay was on the high side but still within the reasonable range. 

14.The respondent submits that the starting point of 9 months taken by the sentencing magistrate in the present case could not be regarded as manifestly excessive in the circumstances of this case, and the appellant was appropriately given a one-third reduction for her guilty plea.

15.I have considered the submissions made by the appellant and also the submissions made by Ms Ho for the respondent.  I have considered the facts of this case as admitted by the appellant and also the matters put forward on her behalf in mitigation before the sentencing magistrate.  I agree with Ms Ho for the respondent that the ground put forward by the appellant today, ie she did not have money to buy air ticket, is not a valid ground of appeal against sentence.  As M Poon J pointed out in Siti:

“In determining the sentence for the offence of breach of condition of stay the court will look at the length of the overstay.”

16.In the present case the appellant had overstayed for a long period of time, ie 4 years and 5.5 months.  In fact the offence in 2011 (STCC 5350/2011) was also one of overstaying. 

17.In my judgment, the 9 months starting point adopted by the magistrate was an appropriate one.  The appellant was duly given a one‑third reduction for her guilty plea.  For the 2 weeks suspended sentence for STCC 5350/2011, the sentencing magistrate activated the sentence but ordered the sentence to run concurrently with the 6 months’ imprisonment imposed in the present case, the order that the sentencing magistrate made as regards the activation of the suspended sentence is not a matter of any complaint.

18.The ultimate sentence of 6 months’ imprisonment is an appropriate one and I see no reason to disturb it.  In my judgment the 6 months’ imprisonment cannot be said to be manifestly excessive or wrong in principle.  The appeal against sentence is therefore dismissed.

Ms Ho May-Yu Lily, Senior Public Prosecutor of the Department of Justice, for the respondent

The appellant appeared in person