HKSAR v. MERITA MANEL SHIROMI FERNANDO

HCMA001005/2002

HCMA1005/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1005 OF 2002

(ON APPEAL FROM KTCC 5474 OF 2002)

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BETWEEN
HKSAR Respondent
AND
MERITA MANEL SHIROMI FERNANDO Appellant

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Coram: Deputy High Court Judge Day in Court

Date of Hearing: 14 November 2002

Date of Judgment: 14 November 2002

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J U D G M E N T

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1. The appellant in this case is a lady from Sri Lanka, she appeared before the Principal Magistrate at Kwun Tong Magistrates’ Courtfacing three charges :

(1) using an identity card relating to another person,

(2) being in breach of a condition of stay, in that she was working on a construction site in breach of her visa which required thatshe should not take any employment; and

(3) being in breach of a condition of stay in that she had overstayed her visa.

She pleaded guilty and was sentenced to 15 months’ imprisonment for the 1st charge, three months for the 2nd charge and two monthsfor the 3rd charge. All the sentences were expressed to be concurrent sentences. She appeals against the 1st sentence only sayingthat it was too severe. She does not appeal against the 2nd and 3rd sentences.

2. The facts showed that she was arrested while working on a construction site. The police had gone to the site looking for illegalimmigrants and she produced an identity card in the name of Elvitigalage, Disna Swarnapani P. The card was not hers, the genuineholder had left Hong Kong in 1997, and this led to the 1st charge. The appellant was permitted to stay in Hong Kong until March 2001and had overstayed her visa and she was working on a construction site in breach of her visa, this led to the 2nd and 3rd charges.

3. She is a 30 year old single lady who initially came to Hong Kong legally to work as a maid. She successfully completed her firstcontract but not her second and it is after the second was terminated that she should have left Hong Kong and returned to Sri Lanka.It would seem that financial problems led her to stay on. She had borrowed when she initially came here and still had that debt torepay when her contract was terminated. She had aged and ill parents and a disabled sister to support in Sri Lanka. I have todayseen medical reports which confirm this. Such temptation persuaded her to stay on and work illegally. All of this it should be saidwas before the magistrate.

4. In the case of HKSAR v. Chan Man Mo [2001] 1 HKLRD 121, Bokhary J examined the authorities and suggested a number of principles which were relevant in cases such as the present appeal.The case provides a most helpful summary of the sentences which might be expected in what are in fact the majority of situationsin Hong Kong.

5. This appellant was an overstayer who used someone else’s identity card to find employment. She produced that card to the police.

The Principal Magistrate’s sentence of 15 months in this case is unassailable. There was, as he said : “simply no reason why the normaltariff should not be applied.” The magistrate acknowledged the financial pressure the appellant was under, but, rightly in the circumstancesof this case, did not feel anything she advanced in mitigation provided strong humanitarian considerations calling for a lower sentence.

6. The appeal is dismissed.

(Richard Day)
Deputy High Court Judge

Representation:

Mr P.K Madigan, SGC, of the DPP, for the Respondent

Appellant in person