HKSAR v. Cheng Mei Yuet

HCMA 353/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 353 OF 2012

(ON APPEAL FROM ESCC 1639 OF 2012)

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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 passed by Acting Principal Magistrate David Dufton for remaining in Hong Kong without authority.

2.It was the standard sentence to be expected upon a plea of guilty to the offence.  This appellant did plead guilty, and she admitted facts which related that within a few weeks prior to being stopped by the police, she had sneaked into Hong Kong on a lorry.

3.The sentence, in those circumstances, would have been unappealable.  However, the not uncommon situation arose that having received the 15 months’ imprisonment, the appellant then decided to tell the truth.  The truth was she was not an illegal immigrant, she was an overstayer.  She clearly thought that it would be in her interest to say that she had just recently sneaked into Hong Kong rather than admitting what was the fact that she had been overstaying by something like three years.

4.The law is quite clear that a conscious plea of guilty, thinking it was to her advantage on that basis, even though it was a false basis, is no ground for vacating the plea.  The conviction has to stand.

5.However, doing what I hope is justice, I can adjust the sentence, because the fact is she was not an illegal immigrant. It is accepted by the prosecution, who have checked the Immigration records, that she did enter here lawfully, and that in truth she is an overstayer.

6.So the sentence she should have, even though it does not fit the actual description of the offence directly, is one that meets the mischief of overstaying by three years.

7.With the help of Ms Mok and some research, we have established that a 4½ months’ starting point would be suitable for that length of overstay, and that would be the sentence after trial.  Given the one-third discount for her plea of guilty, it would result in a sentence of 3 months’ imprisonment.

8.The 3 months since her conviction is up tomorrow.  If she has behaved herself whilst in prison, repatriation will follow immediately.  In fact, she will have served a month more than she might have done if she had received 3 months on the day she pleaded guilty.  For that she only has herself to blame.  I wish to make it quite clear that in allowing the appeal, there is no criticism of the magistrate, and that the situation all came about through the fault of the appellant herself. 

9.I wish to make it clear that in reaching this decision with the research that has been carried out this morning as to the appropriate length of sentence for the overstay, that I seek to alter in no way any established practice that may exist in the magistracy as to how overstayers are sentenced.  It is the fact that when research is done on an appeal such as this, the cases that are available to look at are one from the Court of Appeal, which is CACC268/2001, and other various instances of High Court judges hearing appeals.  I do not receive any direct evidence of what the current practice is.  So I just wish to emphasise again that my decision is not to alter any established practice.

Ms Winnie Mok, Public Prosecutor of the Department of Justice, for the respondent

Appellant appeared in person