HKSAR v. Wongkhamkaew Phimchanok

HCMA000566/2002

HCMA566/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.566 OF 2002

(ON APPEAL FROM TMCC 1382 OF 2002)

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Coram: Deputy High Court Judge Carlson in Court

Date of Hearing: 22 August 2002

Date of Judgment: 22 August 2002

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J U D G M E N T

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1.On 17 May 2002, the appellant appeared before Mr Smout sitting at the Tuen Mun Magistrates' Court and she pleaded guilty to two offences : firstly, an offence of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap.115; and to a more serious offence of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177. Following those pleas, he sentenced her to two months' imprisonment on the first charge and to a term of 12 months' imprisonment on the second charge which he directed to be served concurrently. It is against those sentences that she now appeals on the basis that, she says, these sentences are much too severe in all the circumstances.

2.The facts are uncomplicated. What happened was that just after 10:30 a.m. on 16 May 2002, the appellant was stopped outside King Kwai House, Shan King Estate, by two police officers and they demanded to see her identity card and she produced one. That card, in fact, belonged to her sister with whom she was living. The sister's evidence would have been, had there been a trial, that she had lost that card which she had reported to the Immigration Department, a fact confirmed by the Immigration Department.

3.The mitigation put forward on the appellant's behalf was that her sister is the only living relative that she has, so she came to Hong Kong. She overstayed by a period of about four months. The reason why she did that was because she wanted to be with her sister. There is no evidence that she has been working or anything of that sort but what is absolutely clear is that she took the card in order to further her stay here by, of course, representing herself as someone who was in possession of a valid Hong Kong Identity Card. Sentence in such matters is dealt with in the case of HKSAR v. Chan Man Mo, HCMA1059/1999. V. Bokhary J, who gave judgment in that matter, whilst not purporting to set down guidelines, as she sitting as a judge of first instance, has set out categories of offending in offences of this sort and collated the range of sentences that are appropriate. For someone in the appellant's category, being someone who is not here lawfully and using an identity card in order to further her stay, the usual sentence after plea is one of 15 months' imprisonment. The learned magistrate had some sympathy for the appellant's position but as he made absolutely clear, in the course of the hearing before him, he simply did not feel able to give any greater discount than the one that he gave, which was three months less than the usual sentence. As he explained very properly, he could not do that unless there were exceptional circumstances and clearly there were not any in this case.

4.Therefore, it is very plain that in this case, this appeal simply has no merit. The sentence in respect of the offence of breach of condition of stay is a perfectly proper one and the two sentences were directed to be served concurrently. The appellant cannot possibly have any cause for legitimate complaint. Accordingly, this appeal must stand dismissed.

Representation:

Ms Irene Poon Oi Lin, GC of the Department of Justice,for the Respondent

Appellant in person