HKSAR v. YOU SHUNE

HCMA 581/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 581 OF 2003

(ON APPEAL FROM KCCC 8342/2003)

____________

____________

_______________

J U D G M E N T

_______________

1. The Appellant was charged with Remaining in Hong Kong Without the Authority of the Director of Immigration after having Landed Unlawfully in Hong Kong, contrary to s. 38(1)(b) of the Immigration Ordinance, Cap. 115. She pleaded guilty and was sentenced to 16 months' imprisonment by the Magistrate. The Appellant had previously been convicted on 17 October 2002, for Breach of Condition of Stay and had been sentenced to 1 month's imprisonment, suspended for 2 years. The Magistrate considered there were no grounds why that suspended sentence should not be activated and having activated it, the total sentence was 17 months' imprisonment.

2. The agreed facts showed the Appellant had sneaked into Hong Kong by a fishing junk on 17 December 2002, because she wanted to give birth to her baby in Hong Kong. She remained in Hong Kong after arrival until her arrest on 18 February 2003 at the time she approached the Tuen Mun Hospital.

3. In mitigation, the Magistrate was told that the Appellant was married to a Hong Kong resident and the offence was motivated, not just by her desire to give birth in Hong Kong, but also the need to care for her husband who had suffered an injury at work. However, I note that when questioned by the police, she did not mention her husband's illness; that was mentioned only in court by her lawyer when mitigating.

4. The Magistrate considered that the entry to Hong Kong with a view to giving birth was an aggravating factor because the offence adversely impacted upon the public health system of Hong Kong and enabled the Appellant to jump the immigration queue. It meant that her child would acquire immediate right of abode in Hong Kong. The Magistrate correctly considered that leniency would send a wrong message to mainland expectant mothers who would continue to commit offences such as this.

5. In her grounds of appeal, the Appellant told the court she was remorseful and had come to Hong Kong as she was anxious to see her husband after she learned he had sustained an injury at work. She said that her husband and his parents were living on his employee's compensation and were unable to pay for extra care for her daughter. She asked to reduce the term of imprisonment so that she could look after her daughter.

6. At the appeal, she produced various documents to confirm that her husband had been admitted to the hospital on 16 October 2002 with a closure pelvic fracture and various medical certificates were produced confirming he was still on sick leave. The Appellant also produced her marriage certificate, which confirmed that she married to a man called Leung Chi Men on 10 August 2002. She produced part of the Hong Kong Housing Authority Tenancy Agreement in the name of Leung Chi Men and confirming that two people, his father and his mother, lived with him at that address.

7. I have to consider whether in the circumstances of this case, the sentence is manifestly excessive were wrong in principle. Having done so, I am satisfied that it is neither. Although one has sympathy for the family conditions of this Appellant, the Magistrate was correct in saying that leniency is not to be encouraged for this type of offence. This appeal is dismissed.