R. v. LI WUN CHEUNG

(HIGH COURT)

(Magistracy Appeal No. 597 of 1994)

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JUDGMENT

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Litton, J.A. (sitting as an additional Judge of the High Court):

1. This is an appeal against sentence by Madam Li Wun Cheung who was convicted on two charges on her own plea by Mr Meredith in the North Kowloon Magistracy on 4 May 1994. The two charges were: (a) using an identity card belonging to another and (b) remaining in Hong Kong without the authorization of the Director of Immigration contrary to section 38(1)(b) of the Immigration Ordinance. In relation to charge A, she was sentenced to 18 months' imprisonment; in relation to charge B she was sentenced to 15 months' imprisonment to be served concurrently with the sentence on charge A, making a total of 18 months.

2. The facts leading to her conviction and sentence were briefly these. On 2 May 1994 uniformed police officers saw the appellant leaving a ship in Shanghai Street and when she observed the police she went back to the shop. The suspicion of the police was aroused. The police followed her into the shop and made inquiries and discovered that she had entered Hong Kong unlawfully in March 1994 and had obtained employment with the shop proprietor by producing someone else's identity card: hence the two offences upon which she stood convicted.

3. This appellant's family circumstances are tragic. She has a clear record. She is 36 years of age and lived in Dong Guan, Guangdong Province, earning her living as a vegetable hawker. She was deserted by her husband a few years ago after the birth of her youngest son. On her earnings as a vegetable hawker she supported her young family of three, two daughters aged 10 and 8 and son now aged 6. She also supported her parents-in-law who are both over 80 years of age. Some time ago she was fined RMB 10,000 for having given birth to an extra son and is accordingly in debt to the State. She had a serious operation about four years ago and appears not to be in good health.

4. The magistrate seems to have accepted her statement that it was upon the advice of her mother-in-law that she came illegally to Hong Kong, in order to relieve her desperate financial situation by working in Hong Kong.

5. As can be seen, both she herself and her family are in a highly vulnerable position as a result of her imprisonment. Plainly there are strong humanitarian considerations in this case: though how strong it is difficult to say, in comparison with other cases. Generally speaking the Magistrates Courts have a far wider experience in relation to such matters than the High Court in its appellate jurisdiction, and this court would be slow to interfere with a sentence duly passed.

6. The problem in this case is this. In giving his reasons for sentence the magistrate merely said that he was applying the guidelines, meaning the guidelines set out in the case of The Queen v. So Man-king (1989)1 HKLR 142, without stating that he considered that there were humanitarian considerations present in the case. In setting out the family circumstances as I have outlined the magistrate regarded those matters as facts in mitigation of the offence. Were I satisfied that the magistrate had applied his mind to these factors, or some of them, as amounting to humanitarian considerations I would not have regarded this as an appropriate case for this appellate court to interfere with the sentence. However, I am left in doubt as to whether they were taken into account as humanitarian considerations at all and feel that in this regard I should give the appellant the benefit of the doubt. Accordingly, I must exercise my independent judgment.

7. In my view this is one of those rare cases where possibly (I can put it no higher than that) an experienced sentencing court might have erred; the sentences imposed on this appellant ought to be set aside. The actual level of sentences on the two charges are however appropriate though, arguably, the 18 months' imprisonment on charge A might be said to be on the high side. What then should be done to give effect to the strong humanitarian grounds which exist? This is, in my judgment, an appropriate case for the court to exercise its jurisdiction under section 109B of the Criminal Procedure Ordinance and order that the sentences imposed be suspended. Accordingly, the orders of the magistrate are discharged to this extent. The sentence of 18 months' imprisonment on charge A remains. The sentence of 15 months on charge B remains to be served concurrently with charge A but both sentences will be suspended for a period of three years. The effect is this, and I would ask the appellant to listen to this carefully. You will be discharged from prison as a result of this order and most likely will be repatriated to China. The effect is that if you should within the period of three years from the date of this Order commit any other offence within this jurisdiction not only will you be liable to be punished for that other offence, but the sentences of imprisonment imposed on charges A and B will be revived. To this extent the appeal is allowed.