HKSAR v. Lamiatun

HCMA 90/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 90 OF 2015

(ON APPEAL FROM KCCC 4509 OF 2014)

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REASONS FOR JUDGMENT

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1.This was an application for leave to appeal against sentence. At the conclusion of the hearing, I dismissed the application. These are my reasons for doing so.

2.The appellant pleaded guilty to a charge of possession of an identity card relating to another person contrary to s 7A(1A) of the Registration of Persons Ordinance Cap 177 before a magistrate[1]. She was was sentenced to 12 months’ imprisonment.  She now appeals against the sentence imposed.

Facts

3.In the early morning of 11 April 2014, the appellant was stopped and searched by police officers in a street in Sham Shui Po.  Upon search a Form 8 and an identity card belonging to another person was found in the black colour cross-shoulder bag carried by the appellant.  The appellant never offered any explanation for the card.  The identity card was a genuine Hong Kong identity card belonging to another person called “Hartutik.”

Reasons for sentence

4.The appellant was represented by counsel.  The magistrate indicated that he was thinking of a sentence of imprisonment of 12 months.  Counsel agreed that that was the normal sentence.  Counsel went on to explain that the appellant was 21 years of age and had formerly worked as a domestic helper. 

5.The magistrate had regard to the appellant’s previous conviction in March 2013 for breach of her condition of stay.  He did not regard this as an aggravating factor in sentencing the appellant.

6.The magistrate said he saw no reason to depart from the decisions of the Court of Appeal in HKSAR v Li Chang Li[2] and HKSAR v Fan King Lam[3] and imposed the sentence of 12 months’ imprisonment. 

Grounds of appeal

7.The appellant was not legally represented at her appeal.  In her home made grounds of appeal she submitted the sentence was too severe.  However at the hearing of the appeal she expressed that she was no longer appealing against the severity of the sentence which was imposed but sought the merciful intervention of the court in order to obtain a reduction of sentence. 

8.The basis of her claim for mercy is that her parents in Indonesia are in ill-health.  She wishes to return to Indonesia immediately so she can care for them.  She had no documents to support her claim of her parents’ ill-health. 

Status of appellant at the time of offence

9.At the hearing of the appeal I enquired about the status of the appellant in Hong Kong at the time of the offence and at the time she became a Form 8 holder.

10.I was informed by Mr Leung for the respondent that at the time of committing the present offence she was an over-stayer.  The appellant lawfully entered Hong Kong as a domestic helper in November 2012, she began overstaying since 13 February 2013 for which she was convicted of Breach of condition of stay on 27 March 2013.  She became a Form 8 holder since 12 May 2013 and committed the present offence on 11 April 2014. 

11.At the adjourned hearing Mr Jonathan Man Ag SADPP made submissions on behalf of the respondent in respect of the appropriate sentence to be imposed in respect of the present envisioned different category of offenders for the present offence.  Those persons were identified as those who were in Hong Kong by virtue of lawful entry, residents, over-stayers, illegal immigrants and over-stayers served with removal or deportation orders who are then often typically holders of Form 8 recognizance’s.  Despite the very helpful submissions made by Mr Man it was revealed that the only fact before the magistrate was that the appellant was a Form 8 recognizance holder.  In the circumstances it transpired the submissions made by Mr Man were consequentially not relevant to the present appeal. 

Discussion

12.The appellant did not complain about the severity of the sentence imposed upon her.  As there was no complaint of any error by the judge in sentencing, this appeal is an appeal for mercy. 

13.The grounds put forward were the ill-health and medical condition of the appellant’s parents.  This ground is not a basis for reducing her sentence. 

14.The appellant’s sentence imposed by the magistrate was appropriate and the appeal against sentence is dismissed.

Mr Jonathan Man Tak-ho Ag Senior Assistant Director of Public Prosecutions and Mr Leung Yuk Hang, Gary, PP, of the Department of Justice, for the respondent

The appellant appeared in person