HKSAR v. Guillermo, Milagros Costales

HCMA 1166/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1100 OF 2005

(ON APPEAL FROM STCC 9840/2005)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 17 May 2006

Date of Judgment: 17 May 2006

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J U D G M E N T

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1.The Appellant had pleaded a guilty, to one charge of making a false representation to an Immigration Officer.  After strong mitigation, the learned Magistrate then sentenced her to a period of 3 months’ imprisonment.

2.The facts of the case is serious.  The Appellant had come to Hong Kong as a domestic helper in 1997.  Her contract was completed in 2002.  In order to continue to stay on in Hong Kong, an employment agency was paid $16,000.00 to arrange for a bogus employment contract for her.  She took this bogus employment contract and supporting documents to the Immigration Department and extended her stay and represented to an Immigration Officer that she was being employed by a bogus person called Chuk as a domestic helper.  She was thereupon granted approval to stay in Hong Kong until March 2004 to complete the contract.

3.In March 2004, she then obtained a release letter and recommendation letter purporting to say that she had finished working for this bogus person called Chuk and submitted them to the Immigration Department for an employment visa with a new employer and it was at that stage that she was intercepted.

4.It is clear as Mr Parry pointed out that the learned Magistrate was fully aware of all the surrounding circumstances of this case and also all the mitigating factors.  At the time of the sentence, the learned Magistrate was fully aware that the Appellant was 2 months’ pregnant.  The learned Magistrate very correctly pointed out that this is a serious offence where the Appellant had deliberately used these documents and presented them to the Immigration Officer in order to for her to stay in Hong Kong, so there is no doubt that in this sort of case, a deterrent sentence is necessary.

5.The learned Magistrate took into full account all the mitigating factors and reduced the sentence by half to 3 months’ imprisonment and he considered whether he should suspend this sentence on humanitarian grounds, but he found that there were no exceptional circumstances in this case to do so.  But of course at that time, the Appellant was only 2 months pregnant and had she served the sentence, she would have been released from prison before term.

6.But the Appellant lodged an appeal against sentence and Mr Parry had very helpfully prepared the chronology of event.  She was initially granted a legal aid certificate, subsequently the legal aid certificate was discharged.  The initial hearing in March this year was vacated in order for the Appellant to apply for the free legal service of the Bar Free Legal Service Scheme.  I am told that she has 3 weeks to go before her baby is due.

7.Mr Parry on her behalf had argued two grounds appeal against sentence and the first ground was that the sentence was manifestly excessive but as Mr Parry said he does not reply on that ground as Mr Parry submitted that the learned Magistrate had erred in deciding that the Appellant required an immediate custodial sentence.

8.I agree with the Respondent on this that this is a serious offence thus requiring an immediate custodial sentence even for someone with a clear record.  So the learned Magistrate was not in anyway wrong to impose an immediate custodial sentence. 

9.The second ground urged upon me by Mr Parry upon which he rely is really a humanitarian one.  Mr Parry pleaded for leniency on the basis that the baby is due in three weeks and of course no court would wish to see a baby born in prison if other options could be considered.

10.I have considered all the factors which is of assistance to the Appellant.  She has a clear record and also there was a delay in charging the Appellant because she had originally agreed to testify against the employment agency.  As the learned Magistrate noted she has a serious health problem and also, as Mr Parry pointed out, the Appellant is in her forties, obviously the pregnancy is more of a worry for her health than it would otherwise be for a younger person.

11.Coming back to the humanitarian ground, In the case, I was referred to by Mr Parry, the case of Chan Yuk Lam, HCMA 495/2003, McMahon J had reduced the sentence of a pregnant woman, who had been unaware of the pregnancy at the time of the offence purely on humanitarian ground. 

12.It is difficult in a case of this nature for any court not to consider the humanitarian grounds unless the seriousness of the case and the previous record of the Appellant had indicated that the Appellant had re-offended the court may ignore humanitarian grounds totally.  Although I am reluctant to reduce the sentence in view of the seriousness of this type of offence and not wishing to send out any message that the court will in future be lenient to all pregnant women, but, in the special circumstances of this case, in view of the fact that the appeal only came up before this court at such a late date through no fault of the Appellant, I have decided to do so in the present circumstances.

13.Taking into account the fact that the Appellant does have a clear record and health problems, I have decided that in these circumstances and there is the added factor of the delay in charging her because she was willing to cooperate with the Immigration Department in a prosecution of the particular employment agency involved. 

14.Taking all of these factors into account, in these special circumstances and I stress in these special circumstances only, I will therefore allow the appeal.  The sentence of imprisonment is therefore discharged, and I will sentence the Appellant to a period of 3 months to be suspended for 2 years.

Ms Winnie Lam, GC, for the Respondent

Mr Leslie Parry, instructed by Bar Free Legal Service Scheme, for the Appellant