HKSAR v. TRIEU THI BUU

1997, NO. MA 852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant is an illegal immigrant coming from Vietnam. She pleaded guilty to one count of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. She was sentenced to 15 months imprisonment.

2. She now appeals against sentence. Mr Newman Wong submits that there can be no fault in any way regarding the sentence imposed. He tells the court that the appellant has come to court purely to ask for clemency. The appellant is pregnant and this was not known to her when she came to Hong Kong and at the time when she was sentenced. The magistrate in his reasons for sentence said that he only came to know about this when the appellant came before him to ask for leave to appeal against sentence out of time. He said that had that been known to him at the time of sentence, he would have imposed such a term as would enable the appellant to return to Vietnam in time for the delivery of her baby.

3. Mr Wong refers to a number of authorities where the appellate court exercised clemency to enable pregnant appellants to give birth to their babies outside prison environments. (R. v. Lee Yuk Ying & Others, Mag. App.786/92; R. v. Mo Hoi Ying, Mag. App.236/97 and HKSAR v. Chan Ping Ping, Mag. App.571/97)

4. Mr Cheung for the Government very fairly accepts that this is a case for exercise of clemency and concedes to the appeal.

5. Having regard to the appellant being at an advance stage of pregnancy and she had been in custody for 6½ months and if she is to remain in custody, her baby will be born in prison environments and the appellant would give birth without the support of her family, as an act of mercy, the appeal is allowed and the sentence of 15 months set aside. A sentence of such a term as would enable the appellant to be released forthwith and repatriated immediately back to Vietnam is substituted.