HKSAR v. Mijares Marriza G.

HCMA001061/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1061 OF 1997

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Coram : Hon Gall J. in Court

Date of hearing : 5 February 1998

Date of judgment : 5 February 1998

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J U D G M E N T

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1. The appellant entered a plea of guilty, was convicted and sentenced on 1st November 1997 of two charges of making a false representation to an Immigration Officer lawfully acting under Part III of the Immigration Ordinance.

2. The facts were that the appellant had been working in Hong Kong as a domestic helper, having come to the territory in 1994. Upon the termination of her employment contract in August 1996, she was unable to find a prospective employer. Through the introduction of a friend, she became acquainted with a Chinese woman who promised to pose as her nominal employer at a fee of $8,000. In late August 1996, she was given an employment contract and supporting documents by that woman. She was told that she did not have to work for the woman once the application was approved. Armed with those false documents, the appellant applied for a change of employer on 19th September 1996 and falsely represented to the Immigration Officer concerned that she was to become employed by the woman to whom she had paid the money. She was subsequently granted an extension for the contract on 29th October 1997. Upon expiry of her visa in September 1997, she obtained another supporting letter from the Chinese woman. On 3rd October 1997, she applied for an extension of stay and falsely represented that she was still employed by that woman as a domestic helper. She was apprehended on 30th October when the false employment was detected. She admitted the offences.

3. The learned Magistrate in his Reasons for Sentence found that :

"The appellant had deliberately told untruths to officers of the Immigration Department and had misled them as to the true situation."

He properly found that the only way that he could deal with the offences was by way of custodial sentence. In respect of that, Mr Cotsen has no complaint. He took as a starting point nine months' imprisonment, gave the appellant credit for her pleas of guilty and served her to sentences of six months' imprisonment on each of the two charges and, as a matter of totality, overlapped them by three months giving a total sentence of nine months' imprisonment.

4. Mr Cotsen has drawn my attention to a judgment by Yeung J. in HKSAR v. Saranilla Corazon C. Magistracy Appeal No.944 of 1997. That was a case on all fours with this matter. Yeung J. said :

" I am given to understand that when dealing with offences of making a false representation to Immigration Officers involving forged travelling documents and on a plea of guilty, a sentence of six months' imprisonment was considered to be appropriate. I am of the view that in similar offences not involving forged travelling documents but forged letters of support, perhaps a lenient view ought to be taken.

Having come to that conclusion, I am of the view that a shorter term of four months would be adequate for the offences in question."

In that judgment, the judge properly, in my view, held that a distinction was to be drawn between those offences where the forged travel documents touched upon the comity of nations and those cases involving forged letters of support for domestic servant employees. I adopt the judgment of Yeung J. and am similarly of the view that the distinction should be made in this case.

5. The appeal will be allowed. The original sentence will be reduced to one of four months on each of the two offences to run concurrently.

Representation:

Miss Lily Wong, G.C., for Respondent

Mr Stuart Cotsen, inst'd by D.L.A., for Appellant