HKSAR v. Sangrahange Gedara Priyanka Kumari

HCMA 793/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 793 OF 2004

(ON APPEAL FROM ESCC 3114/2004)

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BETWEEN

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Before:  Hon Lugar-Mawson J in Court

Date of hearing: 28 September 2004

Date of judgment: 28 September 2004

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J U D G M E N T

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1.On 19 July 2004, the Appellant, Sangrahange Gedara Priyanka Kumari, a Sri Lankan national, pleaded guilty before Mr. David Thomas sitting in Eastern Magistrates’ Court to three charges; one of theft, one of possession of an unlawfully obtained travel document and one of breach of conditions of stay.

2.The Magistrate sentenced her to 8 months’ imprisonment for each of the theft and possession charges and ordered that they were run consecutively.  He sentenced her to 2 months’ imprisonment for the breach of conditions of stay charge and ordered that she serve that concurrently with the sentences for the other two charges.  The Appellant’s total sentence, therefore, was one of 16 months’ imprisonment.

3.The Appellant now appeals against the sentences contending that they are too severe.  She also tells me that her husband in Sri Lanka is seriously ill and she needs to be there to take care of him.

4.That theft charge involved a breach of trust.  The Appellant stole goods from her employer valued at $423,300.  In addition, she stole $10,000 in cash.  After the theft she immediately left her employer’s home and laid low in Hong Kong before attempting flee to Sri Lanka about seven days later.  When she was arrested at the Hong Kong International Airport, the stolen goods were in her possession.   Obviously, she intended to take them to Sri Lanka with her. 

5.The proper starting point for the theft offence would have been between 2 to 3 years.  The magistrate adopted a much lower starting point of 12 months. That cannot be regarded as manifestly excessive.

6.For the offence possession of an unlawfully obtained travel document, the usual sentence ranges between 6 to 18 months’ imprisonment. Where the possession of an unlawfully obtained travel document does not involve its use, whether actual or intended, to enter or leave in Hong Kong, it was said in HKSAR v Lam Fat HCMA 1011 of 1998 (unreported) that a sentence of 7 months’ imprisonment upon a plea of guilty is appropriate.

7.In this case, the Appellant was intercepted at the check-in counters of the departure hall of the Hong Kong International Airport in possession of the unlawfully obtained travel document in question.  She admitted under caution that she intended to use it to depart from Hong Kong.  In those circumstances, the Magistrate adopted a starting point of 12 months imprisonment.  That, too, cannot be regarded as a manifestly excessive sentence.

8.There is no tariff for overstaying offences.  The range of sentences varies from a fine to 2 years’ imprisonment.  In determining the offender’s sentence, the length of the period of his or her overstay is a factor to be considered, as is the offender taking up of employment whilst overstaying.   The Appellant in this case was allowed to stay in Hong Kong as a visitor until 22 February 2004.  She was intercepted at the airport intending to leave Hong Kong on 13 July 2004; she overstayed her permitted period by almost five months and in addition had obtained employment as a maid to the victim of the theft charges.  It cannot be said that the starting point of 3 months taken by the Magistrate for this offence was manifestly excessive.

9.The Magistrate recognised the Appellant’s guilty pleas by giving her a reduction of one-third of the periods of imprisonment he would have imposed after trial.  He found that the breach of condition of stay charge and the possession charges did not arise from the same circumstances as those which founded the theft.  He was quite correct in ordering that the sentences for the theft and possession charges should run consecutively.

10.The Magistrate, by ordering that the sentence for the overstaying offence should run concurrently with the sentences for the two other offences, followed the totality principle.  It certainly cannot be said that the resulting total sentence of 16 months’ imprisonment, is either wrong in principle, or manifestly excessive.

11.Whilst I have sympathy for the Appellant’s husband, for I have no reason to believe he is not ill in Sri Lanka, that is an irrelevant matter.  The Appellant should have had his welfare in mind when she chose to come to Hong Kong, overstay here while seeking employment and then steal from her employer.  She has brought about her own misfortune. 

12.The appeal is dismissed.

Ms Vinci Lam, GC, for the Respondent

Appellant in person