R. v. LAM KUEN HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO. 1027 OF 1995

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J U D G M E N T

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Duffy, J.:

1. This was an appeal against a total concurrent sentence of 12 months, the Appellant having been sentenced to 12 months' imprisonment for possession of an identity card relating to another person and a concurrent term of 12 months for remaining in Hong Kong without the authority of the Director of Immigration.

2. The Appellant was 8 months pregnant when she arrived in Hong Kong. The child has since been born and was residing with the Appellant in prison. I am told that the reason why this lady was prosecuted at all, instead of being immediately repatriated, was that she was in possession of an identity card belonging to another person, so she was prosecuted because she had committed an offence other than simply being here illegally.

3. With great respect to the prosecution authorities, there are occasions when it is not appropriate to rigidly enforce prosecution policies. Flexibility is required in the common interest, and in the interest of common sense. There are increasing numbers of pregnant women coming from China, quite deliberately, to have their children in Hong Kong, so that the children can achieve residency here. They then expect leniency from the Courts when it comes to sentence. It is clearly not in anyone's interest to have babies living in prisons, but it is clearly undesirable for the Courts to be seen to be lenient in these cases. The purpose of the guideline sentence is to act as a deterrent, and if the purpose is undermined, because Courts feel obliged on humanitarian grounds to reduce sentences, then the whole point is lost. Surely it is better that these ladies should be repatriated to China immediately, whether or not they have an identity card which is forged, or belongs to someone else, or whether or not they have committed some other minor offence. Prosecution policy should be adapted to fit the circumstances.

4. In the instant case, it is my view that it is wholly inappropriate to allow a child to spend its first months in prison, particularly when its mother has committed no really serious criminal offence, but is merely an immigration offender. I therefore allowed the appeal in this case and reduced the sentence so that she could be released immediately.