HKSAR v. Agapito, Emelita Marquez

HCMA41/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 41 OF 2007

(ON APPEAL FROM FLCC 2953 OF 2006)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  13 March 2007

Date of Judgment:  13 March 2007

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J U D G M E N T

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1.This is an appeal against sentences which totalled 12 months' imprisonment.  The appellant had pleaded guilty to six offences of making a false representation to an Immigration officer and one offence of using a false travel document.  The offences arose in this way.  Back in 1990, this appellant was 17 years old.  Times were hard for her then in the Philippines and she decided, with her family's backing, that she would come to Hong Kong to work as a domestic helper.  But at 17, she was too young.  She went to an agency.  She paid them for what they offered, which was a passport with a false date of birth, making her some three years older.  So she came to Hong Kong and the 1st charge, to which she pleaded guilty, was the false representation when she arrived on 5 May of 1990. 

2.She stayed in employment until 1995 and the other charges, up to Charge 6, represent her use of the false date of birth and making representations to continue her employment.  In 1996, her employment had ended; she overstayed, was caught, was sentenced to a short term of imprisonment and then sent back to the Philippines.  The last two charges represent her use of the passport and the false representation that accompanied its use in order to go back to the Philippines, in other words she had not volunteered the defect in her passport. 

3.She went back to the Philippines, got married, had a child who is now almost 12 years old.  The marriage failed.  She has been looking after the child.  She came back to Hong Kong in 2006 to take up further employment here as a domestic helper.  She came back this time with a proper passport with her proper date of birth.  The Immigration Department picked that up and she was arrested and she told them the truth about what had happened. 

4.The magistrate took starting-points of 9 months' imprisonment and, giving a discount for the plea of guilty, passed sentences of 6 months' imprisonment on each of the charges.  He took the view that the offending in the 1st charge, actually coming into Hong Kong and making the representation, was distinct from the subsequent use of the document here and the continued representations as to the date of birth so he ordered the sentence on the 1st charge to run consecutively to all of the others.  He made the point that the starting-point he chose was one that reflected the sentencing practice as it was in the 1990s and Mr Joseph Wong who appears for the respondent to this appeal agrees that 9 months was the correct starting-point for conduct like this at that time. 

5.It strikes me that there are three main areas of mitigation.  The first is this:  that this sentence is punishment for a lady who is now 34 years of age, for conduct carried out when she was only 17 years old.  And, of course, once she had arrived here with the false date of birth, it was too difficult for her to change it.  The passage of time cannot completely expunge or wipe out proper sentencing for old crimes but, in my judgment, it does provide substantial mitigation. 

6.The second point of mitigation is that this was not a lady who was trying to hide her identity or pass herself off as somebody else.  The other particulars she gave were correct.  The lie was merely about her age.  In my judgment, that is less serious than seeking to hide who you are.  The third area relates to whether or not there is one mischief in this case or whether there were two distinct mischiefs which justified the consecutive sentencing.  My view is that it was really one mischief.  Once you arrive and tell the lie, the rest follows.  I would not have made the sentences consecutive. 

7.I will take the same starting-point of 9 months and, in the ordinary case, that would be reduced to 6 months because of the plea of guilty.  But then, I would recognise that this is not an ordinary case because I am sentencing a lady in her 30s for something that happened when she was 17.  So instead of passing the 6 months which would otherwise result, I shall reflect that by passing a sentence of 3 months. 

8.It is also the case that today the appellant tells me that because she has been in prison since December, she has lost contact with her son in the Philippines.  It appears that all she knows, through incomplete information, is that because her support has ended from here and her husband provides nothing and has deserted the family, that the child no longer attends school and she understands he has actually left the home where he was living. 

9.I have no way of checking that and seeing if it is the truth, though I am bound to say the lady appears to me to be genuine in what she says today.  I am not going to adjourn the case to try to find some corroboration or support for what she says because the view I have taken on sentence allows the Correctional Service to release her in only, I believe, a matter of days.  If what she tells me is true then, happily, it has the effect of reuniting her with child, sooner rather than later. 

10.May I just add that in altering these sentences and reducing the total to 3 months, I do not say the magistrate was wrong.  I have a different view.  This is not an appeal to the Court of Appeal where consideration of ‘manifestly excessive’ or ‘wrong in principle’ apply.  This is a rehearing of the sentence and I can follow my view without having to find fault elsewhere.  I would not say 12 months is excessive for this.  I would regard it as at the stiff end of the bracket and 3 months as the soft end of the bracket.  Thus it is the case that my view is at the bottom of the bracket.  Anyone who has attended anything like a sentencing conference, know that perfectly reasonable people can take different views of the same sets of facts.  Those are my reasons.

(Discussion re obtaining appellant's criminal record, clarification of sentence and adjournment to make inquiries re appeal)

11.I delivered the above oral reasons and was about to leave court when counsel for the respondent drew to my attention that I had slightly misstated the facts in that the appellant had not come back to Hong Kong in 2006, but had come back before that and that these offences only came to light in 2006.  He then told me that the reason it came to light was the fact that she had been arrested for theft.  That did not appear in any of the appeal papers in this case and it appears that the magistrate was not told of it. 

12.Accordingly, that prompted me to inquire what had happened to that case of theft.  Frankly, the appellant is in such a state, she could give me no clear answer and we have had, after a short adjournment, the papers faxed through from the magistracy.  What happened is this:  in this case, she received the 12 months on 9 December; on 12 December, she received 2 months imprisonment for the offence of theft.  Basically, she stole a T-shirt and a few bits and pieces, the total value of which was less than $500, from her employer. 

13.We thus had to look at what effect my new order today would have on the total amount of time she was to spend in custody because, if one took the view that my order today imposed, in effect, a fresh sentence of 3 months' imprisonment, the time spent serving those 2 months' imprisonment which would then run from 12 December, the original sentence of imprisonment having fallen aside by reason of my order today, and so not count against the new sentence.  It posed problems so what I have done, without any objection from counsel for the respondent is this:  that I will amend my order today to one that allows immediate release and, in fact, the effect of that is to save this lady a further week's custody, by my calculation, because if one adds the 3 months that I judge to be right for this sentence to the two months for the theft consecutively, that would have given a sentence of 5 months; she would have earned remission, and that would have given her release sometime next week. 

14.To avoid the complications, I shall amend the order in the way I have indicated and may I just say that this should not happen.  It was only by the purest chance it came to my knowledge that she had this subsequent conviction for theft and had been sentenced to imprisonment for it.  It arose out of one set of facts because the discovery of the Immigration offences arose out of the arrest for the theft.  So if I can say to those who prepare these cases, they should have been sentenced together but even if they were not, I should have been told and the papers should have revealed the later conviction.  It may be, if I had known it, I would have taken a slightly less sympathetic view of this lady's character but, in the circumstances, I will not alter my perception of the gravity of her crimes and the difficult position she now finds herself in. 

15.The order I make is to quash the sentences totalling twelve months and impose such sentences as allow for the appellant’s immediate release. 

Representations:

Mr Joseph Wong, Senior Government Counsel, of the Department of Justice, for the Respondent

Appellant:  Agapito, Emelita Marquez, in person