HKSAR v. Au Yeung Kwai Ying

HCMA000876/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MAGISTRACY APPEAL NO. 876 OF 1997

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Coram: The Honourable Madam Justice Beeson in Court

Date of Hearing: 16 December 1997

Date of Judgment: 16 December 1997

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J U D G M E N T

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1. The Defendant appeals against the sentences imposed in respect of two charges: one of using a forged identity card; the second, a breach of condition of stay. The magistrate imposed the sentence of 12 months in respect of the first offence, a sentence of 1 month in respect of the second offence and ordered that the sentences run concurrently.

2. The Defendant was a two-way permit holder who arrived from China. She had been permitted to enter for 1 week from the 14th February 1997. However, on the 24th June 1997 she was still in Hong Kong and tried to open a bank account with a forged identity card. It was found that the Defendant had one previous conviction of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully, in 1995, when she had been sentenced to 15 months' imprisonment for that offence.

3. Clearly the Appellant had not learned anything from her earlier experience. In mitigation she told the Magistrate that she had rheumatism and had to care for her father who had cancer; she was visiting an aunt with cancer in Hong Kong and she said she had to return to China to look after her old age brother. She did not explain why, if she was so concerned about her relatives in China, she spent the best part of six months in Hong Kong.

4. The magistrate took a starting point of 18 months, discounted it to 12 months for the plea and ordered that the 1 month for the second charge be served concurrently. This was a totally unmeritorious appeal. I consider further that the sentences should have been consecutive rather than concurrent in this case. I have also given consideration to whether or not I should make the sentence run from today instead of August when it was first imposed.

5. However, I shall leave the sentence as it is, except to order that the 1 month in respect of the breach of condition of stay is to run consecutively to the 12 months in respect of the charge of using of forged identity card, making a total of 13 months' imprisonment.

6. The appeal is dismissed.

Representation:

Ms. Alice Chan, Government Counsel for D.P.P.

Au Yeung Kwai Ying, Appellant, in person.