HKSAR v. LI HAI YAN

HCMA 408/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 408 OF 2004

(ON APPEAL FROM KCCC 4602/2004)

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistracy to one charge of Breach of Condition of Stay. The facts showed she came to Hong Kong as a visitor on 25 July 2003 and was allowed a stay of 7 days. She did not leave Hong Kong on 1 August 2003 as she should have done.

2. On the 5 November 2003 she was arrested for overstaying and prosecuted. After being dealt with by the court, the Appellant was required to report to the Immigration Department on 20 November 2003 to be repatriated. The Appellant failed to report in disobedience to that direction and disappeared. She overstayed for a further month and a half before being arrested by the police on 15 January 2004.

3. The Magistrate sentenced her to four months' imprisonment and activated a suspended sentence passed in respect of an earlier offence. The grounds of appeal are that the Magistrate failed to consider, or adequately consider, the circumstances of the Appellant, that the sentence passed was manifestly excessive and that the appeal should be allowed on humanitarian grounds.

4. Counsel expanded on those grounds in his written submissions to the court. He set out the Appellant's personal circumstances leading up to and after the offence. In respect of the period after the offence it was submitted that she had given herself up to the Immigration Office on the 6 December 2003 but because of lack of communication, no further action was taken. A letter has been produced from the Immigration Department, confirming that she did indeed approach the investigation subdivision at Kai Tak Building on that day and was directed to the General Investigation Section by the security guard, but there was no record thereafter of her having attended as directed.

5. The sentence was said to be excessive and various cases were cited in support. It suffices to say that there is no tariff for this offence and each case depends largely on its own facts. Counsel submitted that it was not necessary to activate the suspended sentence for the first offence, but if the sentence was to be activated, the Magistrate should have considered totality. The last ground was a humanitarian ground relating to the birth of the Appellant's child on the day of her arrest. In fact the reason for the Appellant's re-appearing when she did was to give birth to her child in hospital.

6. Those matters were all before the Magistrate and he noted them in his Reasons for Sentence. The Magistrate accepted the period of overstay was relatively short, some 55 days. He also accepted that the overstay was sufficiently short that a defendant of clear record would be unlikely to receive an immediate custodial sentence. However, the Magistrate viewed the Appellant's case as being more serious than the usual case and, in that regard, said in his Reasons for Sentence:

"In the present case, the appellant had been arrested, prosecuted and dealt with by a court. She had then been given an appointment to attend for repatriation. I presumed that the appellant had been required to enter into a recognisance in the matter, as is the usual case. The appellant had defied the direction of the Director of Immigration, however, and had gone underground in order to ensure that her baby was born in Hong Kong. The Director has a very large number of cases such as the instant one to deal with, and the only way that the system can work is by overstayers complying with the directions given to them and surrendering as prescribed. If overstayers can, in effect, make their own determinations as to whether or not to surrender as directed the system will collapse. The Director would have to consider detaining all persons in the position of the appellant until deportation. This would stretch the resources of the Director to, and, indeed, beyond their limits."

7. The Magistrate, for those reasons, took a serious view of the case and he was justified in doing so. He took a starting point of six months' imprisonment, gave the Appellant credit for her plea of guilty and reduced the sentence to four months' imprisonment. The Magistrate did not consider there was any reason why the suspended prison sentence should not take effect. He took totality into account in considering whether, and by ordering that, the earlier sentence should run consecutively to that for the present offence. There is nothing wrong in his doing so; as a matter of principle, a suspended sentence should be activated in all but the rarest circumstances. This appeal is dismissed.

Representation:

Miss Vinci Lam, GC of the Department of Justice for the Respondent

Mr Nelson H W Lam, instructed by Messrs Philip W.I. Li & Co for the Appellant