HKSAR v. Accion, Maria Melba Celada

HCMA339/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.339 OF 2005

(ON APPEAL FROM STCC 3166 OF 2005)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 8 June 2005

Date of Judgment : 8 June 2005

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J U D G M E N T

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1.The appellant pleaded guilty to a charge of overstaying in Hong Kong and was sentenced by Ms L.K. Loh in Shatin Magistrates’ Court to eight months’ imprisonment.  She now appeals against the sentence. 

2.The period of overstay in this particular case is substantial.  It was a period of 10 years and 9 months.  It is right to point out that during that period of overstay the appellant did not work in Hong Kong, a fact which is acknowledged by the learned magistrate in her Reasons for Sentence.

3.During the period of overstay, the appellant apparently met the father of her daughter who is now aged almost seven and started a relationship with him, as a result of which the daughter was born on 19 October 1998.  The father of her daughter is, I am told, an Englishman who was in Hong Kong on a working visa but who has now gone to Libya to work.

4.Many cases have been referred to me and indeed were referred to by the Magistrate in her Reasons for Sentence.  Of all the cases, there was only one case which went to the Court of Appeal for consideration and that is the case of HKSAR v. Tiongson Patricia Manalad [2002] 1 HKLRD 681, CACC268/2001, where the Court of Appeal emphasised that in overstay cases, it is the length of the overstay and whether or not employment was taken up during the period of the overstay, which are relevant factors for the sentencing court to consider.  The Court also expressed the view that there should be consistency in the proper starting point to be adopted by a sentencing court.  In that particular case the period of overstay was 2 years and 10 months and the court adopted a starting point of 4½ months.

5.In the present case, even though the starting point was not mentioned by the magistrate, it would appear that she had adopted a starting point of 15 months and this apparent starting point is agreed by both counsel on the basis that there would have been a discount of one third for the appellant’s plea of guilty which would have brought the sentence down to ten months and there would have been another discount of two months for the fact that she surrendered herself to the authorities, a fact acknowledged by the magistrate in her Reasons for Sentence, and that would have brought the sentence down to the eight months that the magistrate sentenced the appellant to.

6.So, the question really is : Is the 15 months’ starting point adopted by the magistrate manifestly excessive?  Mr Hung for the appellant submits that the maximum sentence under section 41 of Cap. 115 is 2 years’ imprisonment and he therefore submits that the 15 months’ term is very close to the maximum and is therefore manifestly excessive.

7.I have also been referred to two other cases where the period of overstay was also substantial.  Firstly the case of HKSAR v. Tagulao Marcelita A, HCMA528/2002, where the period of overstay was 8 years and 3 months and after the appeal was allowed, the sentence of 8 months was reduced to one of 6 months for the surrender by that appellant to the authorities.  In the other case, HKSAR v. Sapon Imelda G, HCMA948/2003, the period of overstay was 8 years and 3½ months and the sentence was also one of 6 months.  In that case the appellant had also surrendered herself to the authorities and she also did not work during the period of overstay. 

8.Mr Hung submits that it would appear that the learned magistrate had adopted the starting point of 15 months based on a mathematical progression of the 4½ months adopted by the Court of Appeal in Tiongson Patricia Manalad (supra) and roughly multiplied that by 3 odd times to arrive at 15 months. 

9.Sentencing defendants based upon mathematical progression is, of course, not the correct approach as has often been said in cases involving dangerous drugs.

10.In my view it would not be right to consider in a particular case, the exact number of years and months that a particular defendant has overstayed and one should adopt a global view of whether the overstay is substantial or short.  In my view, in the two cases quoted, the period of overstay, 8 odd years, is in the same category as the period of overstay in this case, namely, substantial, and to maintain consistency as advocated by the Court of Appeal, what I intend to do is to reduce the sentence of this case to one of six months’ imprisonment.  The appeal is allowed to that extent.

Ms Olivia Tsang, GC of the Department of Justice, for HKSAR

Mr Andy Hung, assigned by Director of Legal Aid, for the Appellant