HKSAR v. Tsoi Shan Shan

HCMA 1229/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1229 OF 2007

(ON APPEAL FROM ESCC 5395/2007)

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  28 March 2008

Date of Judgment:  28 March 2008

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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 12 months' imprisonment following a plea of guilty to remaining in Hong Kong, having landed unlawfully.  The appellant was represented by the duty lawyer and admitted the brief facts in the court below which related that she was caught in premises in Chaiwan, could not produce her identity document and made admissions to the effect that she had sneaked in by boat, having paid RMB2,000 to a snake-head. 

2.The duty lawyer mitigated on the basis that her visit was to visit a sick grandmother here.  I doubt whether the experienced magistrate who heard that mitigation truly believed that, but nonetheless out of a fine sense of tempering justice with mercy, he said he would act upon the assertion and did not pass the tariff sentence of 15 months.  He reduced it to 12. 

3.The appellant is unrepresented today before me.  She wrote a letter to the court prior to this hearing saying that she was not guilty, in fact, of landing unlawfully but in truth, she was an over-stayer, having overstayed since 2002.  Accordingly, the prosecution was asked to check with the Immigration Department records of movements in names similar to hers with the correct date of birth and it has turned out that they do find a record of her having entered on 23 December 2002 on the strength of a permit which entitled her to stay until 6 January 2003.  There is no record of her departure.  That finding gives some credence to the claim she now makes. 

4.She gave two formal interviews to the police with a Mainland dialect interpreter present on 24 November last year and then the following day - 24 hours later, roughly - on the 25th.  In that, she describes sneaking into Hong Kong by boat.  Her explanation for telling what she says is now a lie to the police and her explanation for agreeing the brief facts and not telling the duty lawyer the truth was that she was confused and frightened.  It is an explanation I reject. 

5.I suspect that the truth is that she thought she would be in less trouble if she admitted sneaking in a few days before rather than admitting to having overstayed by five years.  I have given her the opportunity to say that that is, in fact, the truth without any risk to her of me increasing her sentence or the like but she insists on the confusion story. 

6.The plea was an unequivocal one and I am not going to take any step whereby it could be vacated.  It looks like it may be the case that she is in prison because she pleaded guilty to the wrong offence.  She should have pleaded guilty to overstaying, on her case - and it would be a bad case of overstaying, lasting nearly five years.  On a plea of guilty, overstaying for that length of time would have resulted in a sentence in the region of 9 months' imprisonment. 

7.In the circumstances, I do not think I will be doing any injustice if I were to reduce the sentence of 12 months to one of 9 months and Mr Hui who has appeared for the respondent and who has caused the inquiries to be made that have helped her, does not really seek to urge me to any other course. 

8.The magistrate's sentence obviously was quite right  on the facts known to him.  He knew nothing of these matters that I have been dealing with.  Accordingly, I shall allow the appeal to the extent of passing a sentence of 9 months' imprisonment in place of the sentence of 12 months.  The appellant did purport to appeal against conviction.  Having pleaded guilty unequivocally, that appeal against conviction is dismissed. 

Mr Martin Hui, Senior Government Counsel, of the Department of Justice, for the Respondent

Appellant, Tsoi Shan-shan (蔡山山) , in person