Chan Chun Mui v Hksar

Court:Court of Final Appeal (Hong Kong)
Judgement Number:FAMC13/1999
Judgment Date:13 May 1999
FAMC000013/1999 CHAN CHUN MUI v. HKSAR

FAMC000013/1999

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)

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Between:
CHAN CHUN MUI Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

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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

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D E T E R M I N A T I O N

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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 until 2 November 1996. But she remained here beyond that date. She was arrested on 31 October 1998, by which time she had overstayed by two 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 Appeal against sentence, which is a very rare course indeed. The grounds upon which the applicant seeks such leave are set out in her notice of application, in which she says :

"I overstayed in Hong Kong because I needed to take care of my unemployed husband and our two small children. And the sentence passed on me is really too heavy, putting my family and finances under great strain. This is my appeal to the Court of Final Appeal against the sentence."

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 in the Western Magistracy to terms of immediate imprisonment. As for the fine, he observed that it had been paid immediately. Appearing before us this morning, the applicant said that she had to raise a loan...

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