HKSAR v. Lucea Ahnacray Urbano

HCMA000511/2002

HCMA 511/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 511 OF 2002

(ON APPEAL FROM KTCC 2786/2002)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 30 July 2002

Date of Judgment: 30 July 2002

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J U D G M E N T

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1.The Appellant pleaded guilty in the Magistrate's Court to two offences namely, (1) making a false representation to an immigration assistant which is contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115 and (2) breach of the deportation order contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115. She was sentenced to 8 months' imprisonment on the first charge and 18 months' imprisonment for the second offence and the learned Magistrate ordered that the two sentences be served concurrently. The Appellant now appeals against that sentence.

2.According to the facts that were admitted at the time, the Appellant first came to Hong Kong in 1993, she worked as a domestic helper but she overstayed and in 1995 she was repatriated to the Philippines. In 1997 intending to come to Hong Kong, she obtained a Philippino passport which bore her photograph but none of her own particulars. So on 21 May 1997, she entered Hong Kong with this passport and made her false representation to the immigration assistant which is the subject matter of the first offence. In 1999, she was convicted of one count of possession of an identity card of another person, using an identity card relating to another person and giving false information to a prawn broker, for which she was sentenced to imprisonment. A deportation order was issued against her on 22 October 1999.

3.After she was deported, she came back to Hong Kong in August 2001 in breach of the deportation order, thus the offence in the second charge. And this time, to enter Hong Kong, she used her true identity and was permitted to remain as a visitor until 30 August 2001. However, she overstayed and was arrested on 15 April 2002.

4.When the Appellant pleaded guilty, she was represented by a lawyer who mitigated on her behalf. In mitigation, the lawyer who represented the Appellant, submitted to the learned Magistrate that the Appellant had a two-year old son suffering from jaundice and that he was being cared for by a neighbour. So the learned Magistrate was well aware of that fact at the time of the sentence. It is clear from the cases that the learned Magistrate had referred to, that the sentences which he finally decided to impose on the Appellant were not manifestly excessive.

5.In her appeal, the Appellant, who is unrepresented, throws herself at the mercy of the Court because she wants to be reunited with her child. This was a factor which the learned Magistrate had borne in mind when he decided to give the Appellant the benefit of concurrent sentences rather than consecutive sentences.

6.I agree with the observation of Deputy High Court Judge McMahon in the case of HKSAR v. Liyanage Renuka Padmini Perera, HCMA 424 of 2002 where he said that:

"unless there was strong or compelling humanitarian ground to warrant the early release of the appellant, then the appeal should be dismissed."

7.In this case, such grounds do not exist, the Magistrate had given full consideration to the background of the Appellant and he did so properly, so the appeal is dismissed.

Representation:

Ms Lynda M A Shine, SGC for DPP

Ms Lucea Ahnacray Urbano, the Appellant, in person