HKSAR v. Arabejo Manuel Ii Alquizar

HCMA 315/2020

[2021] HKCFI 93

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 315 OF 2020

(ON APPEAL FROM ESCC 1855 OF 2020)

__________________________

__________________________

Before: The Honourable Madam Justice Toh in Court

Date of Hearing: 29 December 2020

Date of Judgment: 29 December 2020

_______________

J U D G M E N T

_______________

1.The Appellant, who is absent today, is charged with one count of Breach of condition of stay and he had pleaded guilty to the charge and was sentenced to 2 months’ imprisonment. He had already been released, as he was discharged on 12 October this year, and repatriated to the Philippines on the 13 October this year. The Appeal Bundle could not be served on him, and I understand that Mr AU-YEUNG’s submission could not be served on him either, and he is absent today.

2.However, Mr AU-YEUNG submitted this is a clear case that the sentence is not manifestly excessive.  The fact is very simple, a police officer posed as a sex customer and made a phone call at a number found in an online advertisement.  He was instructed to go to a hotel in Causeway Bay. Upon arrival, the door was opened by the Appellant, and the Appellant then informed the police officer that HK$2,000 was required for full sex service.  Just when the Appellant wanted to undress himself, the police officer revealed his police identity.  The Appellant was then arrested, and 10 unused condoms, a bottle of KY Gel were seized from the room.  Upon enquiry made, the Appellant was found to be a Filipino passport holder who arrived in Hong Kong in March this year as a visitor and was only permitted to stay until 7 September 2020.  The Appellant had actually contravened his condition of stay, and under caution the Appellant also admitted the offence.

3.The learned Magistrate heard mitigation that the Appellant was 28 years old, a college student and a transgender.  He has a clear record in Hong Kong.  The learned Magistrate considered the background and previous cases, and thus imposed a 2-month imprisonment. The Appellant, therefore, complained that the sentence was manifestly excessive, he then lodged this appeal.

4.It is clear, as I have said, whatever the financial reason for the Appellant to do what he did, that is not mitigation. He did contravene a law in Hong Kong and the sentence imposed by the learned Magistrate was well within the range of sentences for this type of defence.  So, I cannot see that the sentence was manifestly excessive or wrong in principle, so the appeal is dismissed.

Mr Dimitri AU-YEUNG, PP of the Department of Justice, for the Respondent

The Appellant was unpresented and was absent