HKSAR v. Dulay, Pepito R.

HCMA000489/2003

HCMA 489/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 489 OF 2003

(ON APPEAL FROM KCCC 6492/2003)

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Coram: Hon Beeson J in Court

Date of Hearing: 9 July 2003

Date of Judgment: 9 July 2003

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J U D G M E N T

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1.The Appellant was convicted in the Magistracy of a Breach of Condition of Stay, contrary to section 41 of the Immigration Ordinance, Cap. 115. The facts show that he came to Hong Kong as a domestic helper in April 1992. In April 1994, his contract was terminated and he remained, lawfully, as a visitor to Hong Kong, until 16 July 1996. Thereafter, he overstayed for a period of 6 years and 8 months. He surrendered himself to the Immigration Department on 11 April 2003 and eventually pleaded guilty before a Magistrate.

2.Mitigation was done - it was submitted Appellant had surrendered and had been cooperative. He asked for a lenient sentence. The Magistrate took into account his plea of guilty and also that he had surrendered himself. He imposed a sentence of six months after considering various authorities in similar cases. The Appellant now appeals against sentence.

3.There is no complaint made about the length of the sentence, or about the approach the Magistrate adopted. All that is put before the court is that the mitigation did not reveal any humanitarian grounds for reduction of sentence, because at the time the issue of the Appellant's mother's illness was not raised.

4.A copy of a medical certificate was put before the court purporting to be issued by an institution named as the Chinese General Hospital and Medical Centre in Manila, Philippines. There is no contact address, nor telephone, nor fax number on that document. Apparently the Respondent is not challenging its authenticity. It is difficult to see how authenticity could be checked or investigated as there are no means of contact. It is signed by somebody called Alfredo C. SY, M.D. The certificate stated that somebody called Segundina Dulay, had been confined in that hospital from 31 March to 9 June 2003, with ovarian cancer. She is said to have been diagnosed to have more or less three months to live and has been discharged from the hospital to continue her medication at home.

5.It is on the basis of that certificate that the Appellant asked for a reduction of sentence as an act of mercy. No original copy was produced to court and the complete absence of any means of contacting the hospital raises serious questions about its existence. No explanation was advanced as to why no mention was made to the Magistrate about Appellant's seriously ill mother, whose illness, if the certificate is genuine, must have manifested itself by the time his case was heard.

6.Having taken this matter into account, I am not disposed to reduce the sentence. The Magistrate imposed an entirely proper sentence and a family member's illness is not sufficient reason in this case to warrant a reduction of sentence. The appeal is dismissed.

Representation:

Mr Michael Wong, GC, for HKSAR

Mr Rupert Spicer, instructed by Director of Legal Aid, for the Appellant