HKSAR v. LAM YUK LAN

HCMA 353/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 353 OF 2003

(ON APPEAL FROM ESCC 710 OF 2003)

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J U D G M E N T

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1. This is an appeal against sentence.

2. The Appellant pleaded guilty and was convicted on 7 March 2003 by Mr Dufton sitting at Eastern Magistracy of one count of theft contrary to section 9 of the Theft Ordinance, Cap. 210 and one count of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.

3. On 14 March 2003, she was sentenced to one month's imprisonment for the offence of theft and 15 months' imprisonment for the offence of unlawful remaining. The two sentences are to run concurrently.

4. The Appellant was represented by a duty lawyer both at the time of her plea and for sentence.

5. She appeals against her sentences on the grounds that they were too severe.

6. The prosecution's case which was admitted by the Appellant was that on 26 February 2003, the Appellant went to a supermarket and picked up from the display racks, a package of "Kowloon Dairy Hi-Calcium" milk, three towels, a bottle of "Johnson" body wash, a bottle of Chinese wine, a bottle of "Knorr" liquid seasoning and a package of noodles, put them in a plastic bag and left without paying. She was stopped by a plainclothes security staff member of the supermarket. On her person, HK$239.90 was found. Under caution by the police, she admitted the theft and further admitted that she was an illegal immigrant who had entered Hong Kong unlawfully on 6 February 2003 by boat.

7. The Appellant had a previous similar conviction for remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in 1991 when she was sentenced to 15 months' imprisonment suspended for 12 months.

8. The Appellant did not admit this previous conviction when she appeared before Mr Dufton on 7 March 2003 and the matter was then adjourned until 14 March 2003 for the prosecution to prove the previous conviction. On that day she eventually admitted her previous conviction.

9. Her mitigation before the Magistrate essentially was that she had come to Hong Kong to look for her 27-year old daughter who had come here illegally in 2000. She claimed to be 74 years old and in poor health. She claimed also that she had committed the theft charge because she had used up all her money and was very hungry.

10. The learned Magistrate noted that when she had come to Hong Kong in 1991, she had given not only a different name but a different date of birth which would have made her 59 not 74.

11. He also noted that she was found to have in her possession HK$239.90 which was more than sufficient to pay for the goods stolen. He did not mention, as he might have done, that hunger would not explain the theft of all the items she stole that day.

12. The learned Magistrate correctly bore in mind that in the case of So Man King (1989) 1 HKLR 142, the Court of Appeal had held that for an offence of "unlawful remaining" on a plea of guilty, a sentence of 15 months' imprisonment should be used as the basic guideline unless there was strong humanitarian consideration to depart from the guideline.

13. He was perfectly justified on the facts before him in taking the view that while he sympathized with the Appellant in all the circumstances he found no strong humanitarian grounds to justify departing from the guideline, particularly in view of the Appellant's previous conviction for the same offence. The sentence of 15 months' imprisonment for the offence of "unlawful remaining" was perfectly proper in the circumstances put before the Magistrate.

14. Indeed such a sentence already represented a discount on the guideline suggested by the Court of Appeal in the R v. So Man King where it was said that the court should take into account by upward adjustment any previous unlawful entry.

15. The sentence of one month's imprisonment for theft was also appropriate in the circumstances.

16. He rightly took into account that normally the sentence for the theft offence should run consecutively to the sentence for the offence of unlawful remaining.

17. When considering the totality of the sentences and as an act of mercy, he decided to order the two sentences to run concurrently.

18. On the facts before the learned Magistrate, he was perfectly justified in passing the sentence he did.

19. Before me, she has urged as an additional matter that her 81-year old husband had been admitted to hospital. She produced a letter allegedly from a hospital dated 28 April 2003 indicating that her husband was admitted to hospital on 28 April 2003 suffering from diabetes and kidney inflammation. She had also produced a letter allegedly from her daughter in China saying that the Appellant's husband has difficulty moving and needs help in taking baths, changing clothes etc. and that she needs the Appellant's help in assisting her.

20. She described this daughter as her younger daughter and said that she is aged 32. She claimed that the daughter for whom she came to Hong Kong to look is aged 35. However she had told the Magistrate that that daughter was aged 27.

21. The Appellant is someone whose credibility is in my view highly suspect. As I have said, she gave a different age and date of birth when she came to Hong Kong in 1991. When she first appeared before the Magistrate, she initially denied she had a previous conviction for unlawful remaining. She has given different accounts of the age of the daughter whom she allegedly came to Hong Kong to seek to visit. I view the documents put before the court today with suspicion.

22. In any event there is nothing to suggest in the hospital report or in the daughter's letter to suggest that the Appellant's husband's illness is terminal or grave. While there might be inconvenience for the family in having to look after him, these difficulties can be overcome.

23. Mercy has already been shown to the Appellant in not ordering the sentence for theft to run consecutively to the sentence for unlawful remaining and in not enhancing the sentence imposed in respect of unlawful remaining by reason of the fact that it was a second offence.

24. There is nothing before me today to lead me to conclude that the sentences imposed by the learned Magistrate were wrong.

25. I dismiss the appeal.