The Queen v. Carmelita Tiro

HCMA000154/1989

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H E A D N O T E

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USING FALSE PASSPORT - FILIPINA PROSTITUTE - STRONG MITIGATING CIRCUMSTANCES - PROPER SENTENCE SIX MONTHS BUT RELEASED AS ACT OF MERCY.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 154 OF 1989

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 5 May 1989

Date of delivery of judgment: 5 May 1989

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J U D G M E N T

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1. The appellant pleaded guilty to two charges of making a false representation to an Immigration Officer, contrary to section 42 (1)(a) of the Immigration Ordinance, Cap. 115 and also to using an unlawfully obtained travel document, contrary to section 42(2)(b).

2. The appellant is a prostitute. She carne to Hong Kong from the Philippines on 2nd December with one Gary Adiong, posing as that man's wife and travelling on a passport issued in that name. She told the Immigration Officer on arrival that she had come here to shop; in fact she intended to work as a prostitute, which she proceeded to do. When she tried to return to the Philippines on 2nd January, using another passport also in the name of Adiong, but containing a forged Hong Kong arrival stamp, she was arrested.

3. She was sentenced to 15 months imprisonment for using the false passport and to concurrent sentences of three months for making false representations.   As the magistrate correctly said, "Using a false passport is always a serious offence, affecting, as it does, proper immigration procedures, the comity of nations and control of international crime and terrorism".

4. He said, however, that he found no extenuating circumstances justifying departure from sentencing guidelines. He did not say which guidelines he had in mind.  The relevant authorities are reviewed in R. v. Bhagwant Singh-Padda M.A.1447/88 and R. v, Jumnian Ganin M.A.1220/88.

5. From these cases it will be seen that, depending on the circumstances, a considerable range of sentence, is available to a magistrate.

6. In this particular case, there is no doubt that the appellant was under the control of a pimp.  I am sure she had no idea of the gravity of the offence or what she was letting herself in for. She is now in a dreadful situation.  She knows no one in Hong Kong. She has a child in the Philippines and her family do not even know she is in prison.

7. The facts of the case merit a sentence of about six months. There are strong mitigating factors.  The appellant has been in custody since January. She is suffering emotional turmoil. With normal remission she is due for release about this time.  Justice will be done, I think, if I allow the appeal and substitute a sentence that will permit her immediate release.

Representation:

Mr Maxwell, (Crown Counsel), for Respondent

Appellant in person