FAMC No. 13 of 1999
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 13 OF 1999 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA No. 1194 OF 1998)
Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ
Date of Hearing: 13 May 1999
Date of Determination: 13 May 1999
D E T E R M I N A T I O N
Mr Justice Bokhary PJ :
1. This applicant came to Hong Kong from the Mainland on 11 August 1996, and was given permission to remain here as a visitor until2 November 1996. But she remained here beyond that date. She was arrested on 31 October 1998, by which time she had overstayed bytwo years less two days.
2. She was charged with – and pleaded guilty to – breach of condition of stay, contrary to s.41 of the Immigration Ordinance, Cap. 115. The magistrate passed a sentence of two months’ imprisonment suspended for three years, and imposed a fine of $3,000.
3. An appeal to the High Court against sentence was dismissed. We are now asked to grant leave to appeal to the Court of Final Appealagainst sentence, which is a very rare course indeed. The grounds upon which the applicant seeks such leave are set out in her noticeof application, in which she says :
4. The maximum penalty for this offence is a fine of $50,000 and two years’ imprisonment. That is provided by s.41 of the Immigration Ordinance read with s.113B of, and Schedule 8 to, the Criminal Procedure Ordinance, Cap. 221.
5. In his reasons for sentence, the magistrate said that persons who overstayed for more than two years were invariably sentenced inthe Western Magistracy to terms of immediate imprisonment. As for the fine, he observed that it had been paid immediately. Appearingbefore us this morning, the applicant said that she had to raise a loan to pay the fine. The judge noted two past cases. In one,10 weeks’ imprisonment had been imposed for overstaying for 10 weeks. In the other, 12 months’ imprisonment was imposed for overstayingfor almost 4 1/2 years.
6. No point of sentencing principle arises. Neither the course of the sentencing process nor its result give rise to any arguable caseof great and substantial injustice.
7. In the course of addressing us which she did with courtesy and restraint despite her difficult circumstances the applicant said thatshe had to overstay in order to look after her children, particularly as her husband had become unemployed which did not improvehis patience or temper.
8. She is concerned that her conviction may adversely affect her future efforts to obtain permission to come here or remain here. Andshe wishes us to intervene with the Immigration Department on her behalf. The applicant’s predicament is a difficult one, as themagistrate must have recognized since he dealt with her more leniently than most overstayers are dealt with. However much we maysympathize with her in her predicament as anybody would that course is outside our jurisdiction.
9. There is no basis for granting leave to appeal to the Court of Final Appeal. Accordingly we must and do refuse leave.
Applicant, Ms Chan Chun Mui, in person
Ms Louisa Lai (of the Department of Justice) for the Respondent