Case Document

HCMA 383/2010

HEADNOTE

The appropriate course is to take the fact of an overstayer’s surrender to the authorities into account as an element of mitigation after arriving at the appropriate starting point rather than, as the Magistrate did in this case, to take it into account when arriving at a starting point. In this respect, therefore, the Magistrate’s approach was flawed.

HCMA 383/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 383 OF 2010

(ON APPEAL FROM STCC 1996 OF 2010)

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BETWEEN
	HKSAR	Respondent
	and
	PANTILANAN MARIVITA ROSETE	Appellant

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 30 June 2010

Date of Judgment: 30 June 2010

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J U D G M E N T

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1.This Appellant is a woman of pervious good character in her early forties. She came to Hong Kong on 27 October 1999 to take up employment as a domestic helper on a two-year contract. Her contract was terminated prematurely on 1 July 2000, and she was given permission to stay here until 4 August 2000. Instead of leaving Hong Kong by that date, she overstayed for almost 10 years before surrendering herself to the Immigration Department on 8 April this year. She was charged with, and pleaded guilty before Andrew Ma, Esq. in the Magistrates’ Court to breach of condition of stay, contrary to s. 41 of the Immigration Ordinance, Cap. 115.

2.The Magistrate adopted a starting point of 12 months’ imprisonment, saying that he did so taking into account all factors including the fact that the Appellant had surrendered herself to the authorities. He discounted that term by a third to reflect, he said, her guilty plea and clear record. Accordingly, he sentenced her to 8 months’ imprisonment. She now appeals against her sentence.

3.Three perfected grounds of appeal against sentence have been filed on the Appellant’s behalf. They read:

“1. The learned magistrate erred in adopting a starting point of 12 months after taken into account, inter alia, the Appellant had surrendered herself; the learned magistrate ought to have adopted an appropriate starting point without regard to the mitigating factors, then given the usual one third discount for her plea and then lastly given the further discount on account of her surrender to the authority; had the learned magistrate done so, the sentence would have been 6 months instead of 8 months;

R. v. Iqbal Zahid alias Zahid Iqbal HCMA 560 of 1996; para 5

HKSAR v. Accion, Maria Melba Celada HCMA 339 of 2005; para 5

HKSAR v. Tagulao Marcelita A HCMA 528 of 2002; para 4 to 6

HKSAR v. Sapon Imelda G (14/11/2003, HCMA 948 of 2003); para 1-5

2. Further or alternatively, the learned magistrate had failed to indicate what was the discount given on account that the Appellant had surrendered to the authority;

3. The sentence of eight months in all the circumstances is manifestly too high or too harsh.”

4.The appropriate course is to take the fact of an overstayer’s surrender to the authorities into account as an element of mitigation after arriving at the appropriate starting point rather than, as the Magistrate did in this case, to take it into account when arriving at a starting point. In this respect, therefore, the Magistrate’s approach was flawed.

5.The problem is this. One does not know what starting point the Magistrate would have adopted if he had arrived at one without taking the surrender into account. Nor does one know what discount he would then have given for the surrender. He may have arrived at the same result even if he had gone through the appropriate steps in determining the sentence to be passed, and it is difficult to characterise an 8-month sentence in circumstances like these as manifestly excessive.

6.In such a situation, I think that the just course, particularly one which would avoid any sense of injustice on the Appellant’s part, is for me to approach the question of sentence afresh and to lean in favour of leniency as far as reasonably possible. Doing so, I adopt a starting point of 12 months, discount it by a third to arrive at 8 months and then give a discount of 2 months for the surrender. This yields a term of 6 months.

7.I allow the appeal to reduce the sentence from 8 months’ imprisonment to 6 months’ imprisonment.