HKSAR v. Andersson, Marie Ulla Pernilla

HCMA 387/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 387 OF 2016

(ON APPEAL FROM STCC NO 1610 OF 2016)

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REASONS FOR JUDGMENT

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1.The appellant was convicted upon her guilty plea of a charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance (Cap 115). The magistrate sentenced her to 14 months’ imprisonment.

2.The appellant sought a review of sentence before the magistrate who refused to vary the sentence.  She appealed against the sentence.

3.At the conclusion of the appeal hearing, I allowed the appeal and substituted the original sentence by a lesser term of imprisonment to the extent that the appellant could be immediately released insofar as the sentence for the offence of breach of condition of stay is concerned.  I now give my reasons.

Prosecution’s case

4.The appellant is a Swedish woman.  She entered Hong Kong on 17 July 1995 and was permitted to remain as a visitor until 17 October 1995.  On 21 April 2016, the appellant approached the Immigration Department and was found to have overstayed for 20 years and 6 months.

Mitigation

5.The appellant had a clear record in Hong Kong.  Before the magistrate, the appellant was represented by a duty lawyer.  It was put forward as mitigation that the appellant, having come to Hong Kong in 1995, married a Hong Kong resident in 1996 and had been supported by her husband since then. However, her husband left Hong Kong for business in early 2016 and had since lost contact with the appellant.  She also found out that all the money in their bank accounts had been taken away by her husband.

6.After her husband’s disappearance, she has been supported by her parents, who live in Sweden.  She recently found out that her father is suffering from cancer. She asked for leniency so that she could return to Sweden to take care of the family.

7.It was submitted that the appellant mistakenly thought she would be given the right of abode upon the marriage automatically and that she was misled by her husband who told her that the application for stay had been done.

The Magistrate’s Reasons for Sentence

8.The magistrate acknowledged that there is no tariff for this type of offence.  Length of the overstaying is the principal factor for sentencing. In  sentencing the appellant, the magistrate considered the following cases in terms of the length of overstay and the starting point imposed:

(a)  HKSAR v Tagulao Marcelita A, starting point of 12 months’ imprisonment for overstaying 8 years and 3 months;

(b)  HKSAR v Leonarda Millo Simon, starting point of 15 months’ imprisonment for overstaying 5 years and 7 months; and

(c)  HKSAR v Labena Lenar Abitona, starting point of 15 months’ imprisonment for overstaying 13 years.

9.The magistrate, having noted that the length of the appellant’s overstay was 20 years and 6 months, adopted 21 months’ imprisonment as the starting point, and reduced it to 14 months to reflect her guilty plea.

10.While the matter came to light when the appellant approached the Immigration Department, the magistrate did not treat the appellant as surrendering herself to the authority as the offence was only revealed when the appellant was seeking an extension of stay and she only approached the Immigration Department after her husband ceased to support her financially.  Relying on HKSAR v Ping-ay Josie Eblogen, the magistrate was of the view that the fact that she approached the Immigration Department did not merit any further reduction.

The Grounds of Appeal

11.The general ground of appeal was that the sentence was too severe.  The appellant initially indicated before me that she would not want to pursue her appeal.  But then she asked to be released earlier and confirmed her wish to continue with her appeal against the sentence.  She reiterated what the duty lawyer had said in mitigation before the magistrate about her mistaken belief. She also disputed the findings of the magistrate, which was based on the “brief facts of the case”, that she applied for extension of stay and that she only approached the Immigration Department after her husband ceased to support her financially.  The fact was, she said, she approached the Immigration Department to make enquiry about her status, and she lived on the support of her parents and her savings for 3 years.  She wanted to change the findings of the magistrate.  In my judgment, this is irrelevant insofar as the sentence is concerned.

The Respondent’s Reply

12.Miss Kwok, on behalf of the respondent, very helpfully prepared a list of authorities citing 16 cases[1], including those relied upon by the magistrate involving overstaying. 

13.In HKSAR v Ramos, Marlon, HCMA 449/2015, the appellant lawfully entered Hong Kong but then overstayed for 20 years. She pleaded guilty to the offence.  On appeal, Deputy High Court Judge Remedios held that the magistrate was justified in adopting the maximum sentence of 24 months as the starting point.

14.The respondent submitted that the starting point of 21 months could not be said to be excessive.  The magistrate was also entitled to refuse to give further discount for the appellant’s surrendering to the Immigration Department.

My Opinion

15.Having reviewed the authorities cited by the respondent, I am of the view that the starting point adopted by the magistrate could not be regarded as manifestly excessive or wrong in principle.

16.While voluntary surrender should be encouraged, whether a further discount in sentence, on top of the one third discount for a guilty plea, should be given to the defendant would depend on the circumstances of each case.

17.In this particular case, it is obvious that the initiative of the appellant to approach the Immigration Department was only motivated by her desire to leave Hong Kong.  I agree with the respondent that it was not evidence of great remorse on the part of the appellant.  The magistrate was entitled not to give a further discount to the appellant.

18.My concern in this case is the mitigation put forward to the magistrate that the appellant was mistaken that she had the right of abode in Hong Kong upon the marriage with a Hong Kong resident, and that she was misled by her husband that the application for stay had been done for her.  As revealed in the transcript, the magistrate was alive to the issue whether the mistaken belief could amount to a defence to the charge.  He raised the issue with the duty lawyer who confirmed that she would not rely upon it as a defence because, she said, “ignorance of law is not a defence”.

19.The magistrate then proceeded with the sentencing process.  He did not indicate whether he accepted the claim of the appellant. Nor did he give any discount for this claim.

20.I will not discuss here whether a mistake as to the existence of a condition of stay may amount to a defence to the charge of breach of condition of stay.  The appellant has not filed any notice of appeal against her conviction.  Before me was her appeal against sentence only and she was not represented by a lawyer.  The claim of mistaken belief, to succeed as a defence, would no doubt require evidence in support and cannot be proved by a bare assertion.  In my judgment, it would not be in the interest of justice to discuss the issue here.  It is an issue that will need to be considered with the benefit of full argument.

21.However in any case, the claim of the appellant, if accepted, would amount to a very strong mitigation.  The account of the appellant was not challenged by the prosecution, nor was it rejected by the magistrate.  While the claim sounds a bit strange, I do not think it can be regarded as inherently incredible right away.  It was up to the magistrate to accept or reject the assertion of the appellant.  If the magistrate was not prepared to accept it, he should indicate and give defence counsel the opportunity to call evidence in support of the mitigation.  That was not done in this case.

22.The magistrate did not indicate in his Reasons for Sentence such mitigation was rejected.  In fairness to the appellant, I should assume that her mitigation had been accepted by the magistrate.  As I said, it was a very strong mitigating factor.  However the magistrate did not give any discount to the appellant for this factor.  The appellant’s sentence should reflect this factor.

23.The appellant has been in custody since 4 May this year.  Miss Kwok is fair to accept that the period of custody would be equivalent to an imprisonment term of about 11 months. 

24.In all the circumstances of the case, I find that the period of time the appellant spent in custody has been a sufficient punishment to her. 

The Result

25.I therefore allowed the appeal against sentence by substituting a lesser term of imprisonment to the extent that the appellant was immediately released for the offence of breach of condition of stay.

Ms Anthea Kwok, Senior Public Prosecutor (Acting) of the Department of Justice, for the respondent

The appellant appeared in person