The Queen v. Nithet Sarasit

HCMA000323/1988

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Headnote

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Overstaying in contravention of S. 41 Immigration Ordinance - Sentence.

BETWEEN

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Coram: Hon. Yang, C.J.

Date of hearing: 10th May, 1988.

Date of delivery of judgment: 10th May, 1988.

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J U D G M E N T

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Hon. Yang, C.J.:

1. The appellant pleaded guilty before Mr. Maharaj in the Western Magistracy to an offence brought under Section 41 of the Immigration Ordinance, Cap. 115, namely, overstaying. (The facts are relatively straightforward.) The appeallant surrendered herself to the authorities having overstayed in Hong Kong for over two months, though it is not clear why she did overstay. In November last year she had been convicted of a similar offence and given a suspended sentence of one month, In his statement of findings, the learned magistrate referred to the problems that Vietnamese refugees had caused Hong Kong. He also made the rather cryptic remark about Thais who came here as visitors and overstayed: "it is well known why they come here and overstay", presumably meaning that some of the Thai visitors here are engaged in prostitution.

2. There is nothing on record to show that the magistrate had any evidence to support what Mr. Macrae has described as his ill-founded beliefs. Indeed, Mr. O'Mahony for the Crown quite fairly concedes that there was no evidence whatsoever to show that the appellant had engaged in prostitution. To equate the overstaying of this appellant to the flood of Vietnamese refugees into Hong Kong and to the problem caused by prostitution is therefore quite unsustainable.

3. A very helpful table prepared by the Immigration Office was submitted by the consent of both prosecution and counsel for the appellant. The table shows that over a period of four months in 1988, this type of case has gone up by 19% compared with the same period in 1987. It also shows that most of the cases for which a custodial sentence was imposed attracted suspended sentences rather than immediate custodial sentences. Whilst not uncommon, this type of offence can hardly be described as prevalent.

4. In imposing the immediate custodial sentence of six months for this offence, the magistrate did not say whether he had given any discount to this appellant for her plea of guilty and for her having voluntarily surrendered herself to the authorities.

5. Taking all the circumstances into consideration, I am of the view that the six months imposed upon this appellant is manifestly excessive and wrong in principle. I would, therefore, reduce the sentence of six months to one of two months and this sentence to be consecutive to the one month which had been activated for the suspended sentence imposed in November 1987, thereby making a total of three months. The appeal is allowed to the extent indicated.

Representation:

Mr. Andrew Macrae (C.W. Leung & Co.) for Appellant

Mr. P.J. O' Mahony for Crown/Respondent