HKSAR v. Aquino, Christina T.

HCMA001049/1999

HCMA1049/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1049 OF 1999

(ON APPEAL FROM WSC 11770 OF 1999)

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Coram: Deputy Judge Tong in Court

Date of Hearing: 28 January 2000

Date of Judgment: 28 January 2000

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J U D G M E N T

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1. The appellant was charged with a total of four offences relating to her illegal stay in Hong Kong. The 1st charge was using an unlawfully obtained travel document for the purpose of Part II of the Immigration Ordinance, contrary to s.42(2)(b) of the Immigration Ordinance, Cap.115, Laws of Hong Kong. The 2nd charge was making a false representation to an immigration assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to s.42(1)(a) of the Immigration Ordinance, Cap.115, Laws of Hong Kong. The 3rd charge was breach of condition of stay, contrary to s.41 of the Immigration Ordinance, Cap.115, Laws of Hong Kong, and by virtue of Regulation 2 of the Immigration Regulations. The 4th charge was using a forged identity card, contrary to s.7A(1) of the Registration of Persons Ordinance, Cap.117, Laws of Hong Kong. The appellant pleaded guilty to all the charges and admitted the brief facts.

2. Having heard mitigation, the learned magistrate imposed an overall term of 18 months on the charges. The appellant sought to appeal against that sentence. I have already allowed the appeal and reduced the sentence to 12 months. I shall state my reasons now.

3. The agreed facts of the case showed that the appellant, who was an overstayer in Hong Kong before, had assumed her sister's identity to obtain a Filipino passport. She used that passport to enter Hong Kong on 18 November 1997. She was granted permission to remain in Hong Kong until 2 December 1997 as a visitor with an expressed prohibition against her taking up any employment here in Hong Kong.

4. The appellant tried to locate her husband in Hong Kong but she failed to do so. Then through a middleman, she received a copy of a forged Hong Kong identity card and by virtue of that, she was able to gain employment at a local restaurant. On 16 August 1999, the appellant surrendered herself to the authorities, thinking that her mother was seriously ill in the Philippines. That was the background of her arrest.

5. Counsel for the appellant had put forward a number of arguments in the grounds of appeal. One of the points raised was that the learned magistrate had failed to give any effect to the fact that the appellant had surrendered herself to the immigration authorities.

6. In relation to this, the learned magistrate made the following remark in his Reasons for Sentence :

"The appellant had surrendered herself to the Immigration Department, but in my view, this fact did not carry much mitigating effect. I was aware of the observation made by Cons, Acting C.J. in The Queen v. So Man-king [1989] 1 HKLR 142 that 'voluntary surrender to the authorities should warrant a substantial discount' (at page 145). But in the instant case, the appellant did not surrender out of remorse or out of a voluntary wish to put an end to her unlawful remaining in Hong Kong. She surrendered simply because she wanted to go back to the Philippines to see her mother, and her surrender was forced by the situation. In my view, this could not be classified as a 'voluntary surrender'. Little discount of the sentences could be given on this score."

In my judgment, whatever the motive, the act of surrender is itself a factor which should be recognized by the sentencing magistrate. It must be the policy of the law to encourage those who are in similar situation to surrender, as detection of such type of offences is rather difficult and would involve much public cost. I take the view that a six months' reduction would be appropriate in the circumstances. Apart from this, I was not persuaded that there were merits in the other grounds.

7. The original sentence of 18 months was the outcome of a methodical calculation and adjustment of four separate sentences by the learned magistrate. There is no point for me to try to unravel the calculation and somehow fit in the six months' reduction. I would simply reduce the overall sentence of 18 months to one of 12 months. However, for the sake of clarity of the record, I shall specify that for the 1st charge, the sentence would be three months instead of six, and for the 4th charge, the sentence would be nine months instead of 12. The 1st and 2nd charges would be concurrent, and the 3rd and 4th charges would also be concurrent. However the two sets of concurrent sentences would run consecutively, making a total of 12 months.

Representation:

Ms Agnes Chan, SGC of DPP, for HKSAR

Mr F. Burkett, assigned by DLA, for the Appellant