HKSAR v. Kurukala, Jayasooriya Kalpana Samanthi

HCMA1121/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA1121/2006

(ON APPEAL FROM ESCC4202/2006)

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BETWEEN

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Coram:  Deputy High Court Judge Line in Court

Dates of Hearing:  30 January 2007

Date of Judgment:  30 January 2007

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J U D G M E N T

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1.This is an appeal against a sentence of 15 months’ imprisonment that was imposed following a plea of guilty to an offence of using a forged identity card.  The Appellant is a lady from Sri Lanka and at the behest of others she used the forged identity card to open a bank account.

2.The sentence of 15 months that she received was in line with the guidance given in Li Chan-Li and there would have been no successful appeal against it in the ordinary course of events.

3.However, what has transpired is this: that since the hearing in front of the Magistrate, and in fact since the initial filing of the notice of appeal, it has become apparent that this Appellant’s father is gravely ill in Sri Lanka.

4.It is a commonplace that people claim the illness of parents or loved ones back in their own countries either prompted them to commit crimes or that it mitigates their crimes, especially immigration crimes, in Hong Kong.  In the vast majority of those cases, the claims to ill health and the like are unsubstantiated, made in many cases almost as a matter of course and it is no surprise that the courts do not act upon them.  It needs proper evidence to satisfy a court in these circumstances that the claim is a true and bona fide one.

5.In order to help this lady, who first appeared in front of me un-represented, to establish her case, and because I thought she may have  a bona fide claim, I granted her legal aid.  She has had the considerable advantage of having Mr Acton-Bond appear on her behalf.

6.In the fortnight’s adjournment that followed her first appearance, he and his solicitors have been assiduous in seeking to put together the proper documents which establish the correct relationship to a man who is undoubtedly very ill and asking for his daughter in Sri Lanka.

7.I need not recount what the evidence is.  It has been very well presented before me and all I can say is this: that if it is not a true bill, it is the most wonderful forgery that has taken me in.  This could not have been, in my view, prepared in a way that hid a false claim.  The documents have the ring of truth.  They were not without their problems and it is the way those problems occurred and the way they have been resolved for the most part that gives the claim the characteristics which lead me to judge it to be bona fide.

8.So accordingly, there was nothing wrong with the sentence when it was passed but in view of intervening events, and the time scale is properly explained before me, I now take the view that strong humanitarian grounds exist for reducing this sentence. 

9.In effect, my judgment is that I can do justice and serve the public interest by letting her go back now to her sick father.  Accordingly, what I shall do is impose a sentence of 3 months’ imprisonment but I only pick that figure because it allows her immediate release, the sentence having been passed on 26 October last.

Representation:

Ms Olivia Tsang, Government Counsel, of the Department of Justice, for the Respondent

Mr Jonathan Edward Acton-Bond, instructed by S H Chan & Co., for the Appellant