HKSAR v. Chen Yuanyu

HCMA291/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 291 OF 2005

(ON APPEAL FROM STCC 2212 OF 2005)

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BETWEEN

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Before: Deputy High Court Judge Line in Court

Date of Hearing: 28 April 2005

Date of Judgment: 28 April 2005

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J U D G M E N T

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1.This is an appeal against sentence.  The Appellant was sentenced to 14 days’ imprisonment for overstaying and to 7 months’ imprisonment for making a false representation to an Immigration officer.  The false representation was made as she was leaving Hong Kong to go back to the Mainland.  She did not wish to reveal that she had overstayed and, accordingly, told a lie to the effect that she had only sneaked into Hong Kong that day. 

2.The Magistrate, after carefully looking at various cases of making false representations, felt bound to take a starting-point of 12 months.  She reduced that by a third for the plea of guilty and then took a month off to reflect the fact that the Appellant was leaving and had told a lie to cover up an offence rather than coming to Hong Kong and staying here when she should not have been here. 

3.I take a more lenient view of the facts.  The starting-point of 12 months is appropriate for people who come here in the usual way and tell a lie to get in.  The lie told in this case was merely to avoid being prosecuted for overstaying.  When considering how to punish that lie, one has to look at the mischief that it is told to avoid and the mischief here was worth 14 days’ imprisonment.  It seems out of proportion to me to send someone to prison for 7 months for seeking to avoid a fortnight in prison. 

4.In the peculiar circumstances of this case, I judge a sentence of 2½ months’ imprisonment for the false representation to be adequate punishment.  It was conduct that went beyond the overstaying so I shall make the sentence consecutive to the two weeks.  The total, therefore, is 3 months’ imprisonment.  Sentence was passed in the Magistrates Court now over two months ago, so providing the Appellant has behaved herself in prison, which I imagine she has, she will be repatriated very soon. 

5.In making the order I have and allowing the appeal to the extent of varying the sentence on Charge 2 in the way I have indicated, does not mean that the Magistrate was wrong.  All it means is I take a different view and under our system an Appellant is entitled to come and seek a second view and, if it differs, be sentenced on that basis. 

Representations:

Appellant, Chen Yuanyu, in person

Ms Lily Ho May-yu, Senior Government Counsel, of the Department of Justice, for the Respondent