HKSAR v. CHEUNG SUI HUNG

HCMA465/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.465 OF 2004

(ON APPEAL FROM KCCC5535 OF 2004)

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J U D G M E N T

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1. The appellant Cheung Sui Hung pleaded guilty before a magistrate to one charge of breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115. She was sentenced to seven months' imprisonment. She now appeals against the sentence.

The facts

2. The appellant breached the condition of stay by overstaying. She arrived on 28 June 2001 and was permitted to stay until 14 July 2001. She overstayed until 7 April 2004 and surrendered herself to the authority. The period of overstaying is two years and eight months.

Reasons of the magistrate

3. The Magistrate took into account that the appellant was a repeated offender in that in 1996 she breached the condition of stay and was fined $1,500.00 and in 1998 she breached the condition of stay again and was sentenced to one month's imprisonment suspended for one year.

4. The Magistrate took the starting point of 12 months and reduced it to eight months' imprisonment upon plea and further to seven months' taking into account that the appellant surrendered herself to the authority.

Grounds of appeal

5. Miss Ma for the appellant submitted that the sentence was manifestly excessive. She referred to the recent case of HKSAR v. Liana, HCMA385/2004, per Bokhary J. The appellant in that case breached the condition of stay by overstaying two years and six months. She was sentenced to seven months' imprisonment by the magistrate and the sentence was reduced to two months' imprisonment upon appeal. Miss Ma also submitted that Liana was working in the period of overstaying while the present appellant was not.

6. Miss Shine for the respondent conceded that the sentence was excessive. Taking into account that the appellant has now served two and a half months' imprisonment, the respondent submitted that the end of justice would be served if the appeal were allowed to the extent to effect the immediate release of the appellant. Miss Shine added that she entirely agreed with the Magistrate that taking into account that the appellant had surrendered to the authorities, but also bearing in mind that she has two similar convictions, the discount of one month for surrender was correct.

Conclusion

7. In the circumstances, I allow the appeal and set aside the sentence and impose such sentence that would effect the immediate release of the appellant.

Representation:

Ms Lynda Shine, SGC of Department of Justice, for the Respondent

Ms Anita Ma, instructed by DLA, for the Appellant