HKSAR v. CHEN CHUNHUA
- Citation
- HKSAR v. CHEN CHUNHUA
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 19 February 2009
- Posture
- Magistracy Appeal (criminal) / Appeal Against Sentence to High Court (court of First Instance)
- Case number
- HCMA1053/2008
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 19 February 2009
- Posture
- Magistracy Appeal (criminal) / Appeal Against Sentence to High Court (court of First Instance)
- Case number
- HCMA1053/2008
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal court allowed a partial appeal on compassionate grounds: having regard to the appellant's guilty pleas, prior conviction, the established compassionate circumstances (husband's medical treatment and death, family responsibilities and debts) and existing sentencing practice, the appropriate relief was to reduce the concurrent sentences on Counts 1 and 2 from 6 months to 3 months, leaving the 2‑month consecutive sentence for Count 3 intact, thereby reducing total imprisonment from 8 to 5 months and permitting immediate release.
Court disposition
Appeal allowed in part; sentences on Counts 1 and 2 reduced and immediate release ordered
Orders
- Sentences on Counts 1 and 2 reduced to 3 months imprisonment on each count to run concurrently
- Sentence on Count 3 of 2 months imprisonment to run consecutively remains unchanged
- Total sentence reduced to 5 months imprisonment
- Immediate release of the appellant
02
Material facts
Parties
CHEN CHUNHUA
Appellant Counsel: Appellant in personHKSAR
Respondent Counsel: Miss Margaret Lau, PP of Department of JusticeAmounts and remedies
- Original Total Sentence (months): 8
- Reduced Total Sentence (months): 5
- Medical Expenses Asserted by Appellant: RMB 100,000
03
Procedural history
Posture
Magistracy Appeal (criminal) / Appeal Against Sentence to High Court (court of First Instance)
04
Questions and positions
Legal issues
- 01
Whether the sentences imposed by the Magistrate were excessive
- 02
Whether compassionate circumstances justified a reduction in sentence and immediate release
Party arguments
- Applicant
- The appellant sought reduction and immediate release on compassionate grounds following the unexpected serious illness and death of her husband, the need to return to the Mainland to care for three children (two still students), and to address substantial debts incurred by over RMB100,000 in medical expenses; she pled guilty and promised not to reoffend.
- Respondent
- The respondent maintained that the offences and the appellant's prior conviction justified the sentences imposed and that the sentencing starting points and guilty plea discounts applied by the Magistrate were appropriate.
05
Court’s reasoning
Legal principles
- 01
Magistrate's sentencing practice and appellate review principles
Sentencing must reflect the gravity of the offence, prior convictions and need for deterrence
- 02
Magistrate's sentencing remarks and accepted sentencing practice
Discount for guilty plea is appropriate and typically expressed as a one‑third reduction in this case
- 03
High Court appellate authority and common law principles on mitigation
Courts may reduce sentences on compassionate grounds where exceptional family or humanitarian circumstances are established
06
Ratio, limits and disposition
Ratio decidendi
The appeal court allowed a partial appeal on compassionate grounds: having regard to the appellant's guilty pleas, prior conviction, the established compassionate circumstances (husband's medical treatment and death, family responsibilities and debts) and existing sentencing practice, the appropriate relief was to reduce the concurrent sentences on Counts 1 and 2 from 6 months to 3 months, leaving the 2‑month consecutive sentence for Count 3 intact, thereby reducing total imprisonment from 8 to 5 months and permitting immediate release.
Obiter and limits
- Prior to February 2003 lower starting points of 9–12 months had been frequently adopted in similar cases
- Surrender to police may appropriately be reflected in a further modest discount
- The appellant produced medical and cremation documentation and an asserted medical cost of over RMB100,000 which the court accepted as relevant mitigation
Court disposition
Appeal allowed in part; sentences on Counts 1 and 2 reduced and immediate release ordered
- Sentences on Counts 1 and 2 reduced to 3 months imprisonment on each count to run concurrently
- Sentence on Count 3 of 2 months imprisonment to run consecutively remains unchanged
- Total sentence reduced to 5 months imprisonment
- Immediate release of the appellant
Source and reliance status
Court of First Instance · 19 February 2009
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 19 February 2009
bjbj HCMA1053/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 1053 OF 2008 (ON APPEAL FROM STCC7609 OF 2008) ---------------------------
BETWEEN HKSAR Respondent and CHEN CHUNHUA( his is an appeal by the appellant against the sentences, totalling 8 months imprisonment, imposed upon her by Mr Jenkins at Shatin Magistrates Court following her pleas of guilty to one charge of using a false two-way Chinese permit (Charge 1), a related count of making a false representation to an Immigration Assistant (Charge 2) and a charge of having overstayed in 2008 (Charge 3).
AUTONUMOUT The first two charges relate to her entry into Hong Kong on 12 March 1998. On that occasion she used a Chinese permit which bore her photograph but the particulars of another person. She falsely represented that she was that other person when she entered Hong Kong. Following her conviction on 12 January 2000 for breach of her condition to stay, she was given a suspended sentence and was repatriated to the Mainland.
AUTONUMOUT Over six years later, on 28 September 2006, she entered Hong Kong again, lawfully under a Chinese permit in her true name. She was permitted to remain for 7 days but overstayed by just over 2 years until 27 October 2008 when she surrendered to the police.
AUTONUMOUT The magistrate stated that he would normally have imposed sentence of 12 months imprisonment on each of the two charges to run concurrently in the event of pleas of guilty, but that, as prior to February 2003 lower starting points of 9 to 12 months imprisonment had frequently been adopted, he would adopt a starting point of 9 months imprisonment on each of those charges which he would discount by one-third to reflect the appellant s pleas of guilty. He therefore imposed sentences of 6 months imprisonment in Counts 1 and 2 to run concurrently.
AUTONUMOUT In so far as the overstaying charge was concerned, the magistrate bore in mind that the appellant had had a similar conviction in 1998 for which she had been sentenced to a suspended term of imprisonment. He also bore in mind the long period of overstaying (just over 2 years). He adopted a starting point of 15 weeks imprisonment which he reduced by one-third to reflect the appellant s pleas of guilty and discounted the sentence by a further 2 months to reflect the appellant s surrender to the police. He ordered the resulting 2 months imprisonment to run consecutively to the concurrent sentence in Counts 1 and 2.
AUTONUMOUT The appellant does not criticise the sentences imposed by the magistrate which were in no way too severe in the circumstances known to the court at the time. However, within a week of sentence being passed on 4 November 2008, the appellant learned that her husband had unexpectedly fallen very seriously ill. He underwent an emergency hospital treatment but sadly died on 15 November 2008. The appellant has produced a copy of the cremation certificate and the hospital report. She says that his medical treatment cost over RMB100,000. She asks to be permitted to return to the Mainland to be with her three children, two of whom are still students, and so she can try to deal with her substantial debts. She promises not to offend again.
AUTONUMOUT am persuaded that, as an act of mercy, the appellant should be permitted to return to her children without delay and be in a position to attempt to sort out her financial affairs. I accordingly allow the appeal to the extent that I reduce the sentences on Counts 1 and 2 to 3 months imprisonment on each charge to run concurrently with each other. This will have the effect of reducing her total sentence to 5 months imprisonment and should result in her immediate release. (P.K.M. Longley) Deputy High Court Judge Miss Margaret Lau, PP of Department of Justice, for HKSAR Appellant in person, present
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