HKSAR v. Warniati

HCMA 137/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 137 OF 2005

(ON APPEAL FROM STCC 410 OF 2005)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 9 March 2005

Date of Judgment: 9 March 2005

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J U D G M E N T

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1.The Appellant appeals against her sentence of 6 months’ imprisonment made up of three concurrent terms each of that duration passed on her by Ms Merinda Chow in the Magistrate’s Court at Shatin on three charges, to which she had pleaded guilty, of making a false representation to an immigration assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, Cap. 115.  The charges were laid under section 42(1)(a) of that Ordinance.  Their particulars were that she had on 28 July 2001, 8 February 2003 and 13 November 2003 falsely represented that she was born on 30 December 1976.  In fact she was born on 5 December 1978.

2.In sentencing the Appellant, the Magistrate adopted a starting point of 9 months, reducing it by a third for the Appellant’s guilty pleas.

3.The sentence passed on the Appellant is within the appropriate range for the usual run of offences committed against section 42(1)(a) of the Immigration Ordinance.  But the circumstances of the present case are somewhat unusual.  The false representation as to the Appellant’s age is contained in her passport.  And it was automatically made to the immigration personnel involved upon and by presentation of that passport.  How did the Appellant’s passport come to state her date of birth as 30 December 1976 when her true date of birth is 5 December 1978?  The answer is that as a 16 year-old girl from a humble background she left her country Indonesia to seek employment in Malaysia.  She was underage, and someone described as a “middleman” helped her to obtain a passport which overstated her age.  In 2001 she decided to come to Hong Kong.  By then she was no longer underage.  Unfortunately she approached the same middleman, and he helped her to obtain another passport in which her mis-stated date of birth was repeated.

4.This sad story begins therefore with the Appellant as a 16 year-old girl.  It continues with her working as a domestic helper in Hong Kong from 2001 to 2004.  In 2004 she got married here to a Hong Kong permanent resident.  To her credit and showing that she has abandoned the lie first made by her as a 16 year-old girl obviously under the influence of an unscrupulous person, the passport which she presented to the Marriage Registry stated her true date of birth.  This led to the discovery of the offences concerned.

5.Today the Appellant is a wife of a Hong Kong man and the mother of their young child.  There are strong humanitarian consideration in the Appellant’s favour.  Moreover there are circumstances pertaining to the commission of these offences which put them in less serious a light than section 42(1)(a) offences generally are.

6.In an appeal against sentence under section 113 of the Magistrates Ordinance, Cap.227, the power and duty of the High Court is, while showing proper respect for what the sentencer does within his or her sentencing discretion, ultimately to do what is just.  That would be the implication of any appeal at large, appeals like this being of that nature.  Moreover it is expressly so provided by section 119(1)(d) of the Magistrates Ordinance in which the word “just” is expressly used.

7.Doing that duty, I allow this appeal so as to suspend for one year the concurrent sentences of 6 months imprisonment passed on the Appellant on each charge.  She will understand that if she were to commit any offence in future, she will be liable to have the suspended terms activated.  I am obliged to give her that warning, but I do not think she will ever offend again.

8.The appeal is allowed as I have indicated.  She is now at liberty.

Miss Winnie Lam, GC, of Department of Justice, for the Respondent

Appellant, in person