HKSAR v. KAU HIU MUI

HCMA1149/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1149 OF 2000

(ON APPEAL FROM TWCC 3652 OF 2000)

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J U D G M E N T

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1. The appellant was charged with three counts before the learned magistrate :-

1) obstructing of public place;

2) hawking without a licence; and

3) breach of condition of stay.

She was fined by the learned magistrate on the 1st and 2nd charges and sentenced to two months' imprisonment in respect of the 3rd charge. She now appeals against the sentence in respect of the 3rd charge only.

2. The appellant was married to a Hong Kong resident in 1997 but that she is a resident of mainland China. She has come to Hong Kong previously on eight occasions after her marriage on two-way permits. On each occasion, she is authorized to remain as a visitor in Hong Kong during the period of stay permitted subject to the usual condition that she takes up or engages in no employment during her stay here.

3. On 14 September 2000, she entered Hong Kong lawfully again on a two-way permit with the usual conditions. The permitted period of stay ends on 13 December 2000. On 3 November, at about 4:30 p.m., she was found hawking on a pavement in Yuen Long and arrested. She was charged with the three offences already referred to. She appeared before the learned magistrate on 4 November and pleaded guilty to all three charges, and on the same day, she was fined and sentenced by the learned magistrate to those three charges.

4. She lodged the Notice of Appeal against sentence in this case on 8 November. On 10 November, she applied for bail pending appeal. Her application for bail pending appeal was granted by Lugar-Mawson J on 14 November. From her arrest up to the granting of bail pending appeal, she has been in custody for 12 days. The learned magistrate, in giving his Reasons for Sentence, said as follows :-

"It was clear that I should deal with the offences in charges 1 and 2 by way of fines. I fixed the level of fines in accordance with general fine levels for offences of this nature. In relation to charge 3 I bore in mind, however, the fact that the appellant had come to Hong Kong from the mainland as a visitor and had deliberately set out to engage in the business of a hawker, if only on a small scale. I had sympathy with the appellant in her personal difficulties, but only on a personal level. In my judgment, despite the appellant's clear record, the only appropriate sentence for charge 3 was the imposition of an immediate custodial sentence. I took a starting point of three months' imprisonment. I gave the appellant full credit for having pleaded guilty at the earliest opportunity and reduced the sentence accordingly to one of two months' imprisonment. I imposed default periods in respect of fines I had imposed for the offences in charges 1 and 2 and ordered them to run concurrently with the sentence I had imposed for charge 3."

5. When the appellant pleaded guilty before the learned magistrate, she was unrepresented. One matter that ought to have been put before the magistrate by way of mitigation but which was not, was the fact that the eight pairs of shoes which the appellant was hawking in Yuen Long were left over stocks from her husband's failed factory business in China. This piece of evidence only found its way into her affirmation when she applied for bail pending appeal and at which time, she was represented by solicitors. Another piece of information which the learned magistrate did not have before him came before me by way of statistics provided by the Immigration Department. These are statistics of persons convicted for breach of conditions of stay by taking up unapproved employment or establishing business without permission from June to November 2000. These statistics show that, between June and November 2000, 497 persons were convicted of taking up unapproved employment during their permitted period of stay in Hong Kong as visitors. Of these, 75 were given immediate custodial imprisonment sentence which included activating suspended sentences. Unfortunately, however, there is no breakdown as to how many, among these 75, were first offenders like the present appellant. Also from these statistics, 42 were given suspended sentences, ranging from seven days to four months' imprisonment suspended for periods of 12 to 36 months. Furthermore, 113 were fined between $100 to $3,000 while 267 were given fines plus a suspended sentence. It can be seen from these statistics that part of the 75 who were given immediate custodial sentences were not first offenders, but were having their suspended sentences activated; and over 400 of these offenders were either given suspended sentences, fined or fined and suspended sentences such that they did not have to suffer immediate custodial sentence.

6. I have also been referred to the case of R v. Lai Mei-ying, MA803/1995. There, the appellant of clear record was found to be working as a prostitute during the time she was permitted to be a visitor in Hong Kong. Stuart-Moore J (as he then was) reduced the sentence of four months' imprisonment to one of four weeks.

7. I am quite certain that had the learned magistrate had before him the two pieces of information which I have referred to, with the benefit of the statistics provided by the Immigration Department, he would have been in a much better position to place the seriousness of this offence committed by the appellant within the spectrum as shown by those statistics. However, without those two pieces of information, he could only do the best that he could in the circumstances.

8. With the benefit of those two pieces of information now, I can safely say that the sentence passed by the magistrate on this appellant was manifestly excessive taking into account all the circumstances of the case. Moreover, no doubt in the light of these statistics provided by Mr Kwok and for which I am grateful, Mr Kwok has very properly conceded that he will have no quarrel if the sentence of the learned magistrate was reduced to a term of 12 days' imprisonment in respect of charge 3. This will enable the appellant effectively to be released immediately. That is the course which I propose to take. Accordingly, I will order that the appeal be allowed and the sentence of two months' imprisonment for charge 3 be reduced to one of 12 days' imprisonment so as to effectively allow the appellant's immediate release from custody.

[Submissions from counsel on costs]

9. I further order that there will be no order as to costs of the appeal.