THE QUEEN v. NG FONG YU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 83 of 1985

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BETWEEN

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JUDGMENT

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1. The Appellant pleaded guilty to a charge of an offence contrary to section 38(1)(b) of the Immigration Ordinance, namely remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. In mitigation, she said to the learned magistrate "I want to go back to China to see my parents."  The learned magistrate sentenced her to imprisonment for 12 months.   She now appeals against that sentence. Mr. Llewellyn who appeared on her behalf of the hearing of this appeal at the outset of the hearing conceded that he could not possibly submit that the sentence was excessive. In fact, he went further and conceded that on the basis of authority, it was the appropriate sentence in the circumstances then known to the learned magistrate. What he has sought to do on the hearing of this appeal is to nut before the Court the circumstances of mitigation which should have been put before the learned magistrate, but were not put because the appellant at that tire confined herself to saying the sentence which I have just quoted.

3. After hearing the circumstances in mitigation which Mr. Llewellyn put before me on behalf of the appellant, I found that they, if true, excited so much sympathy for her that I decided that I should obtain a probation officer's report concerning her background. I now have that report and it confirms the material which was put before me by Mr. Llewellyn.

4. This appellant first came to Hong Kong in 1982. She came then to join her husband who had come here in 1979 as an illegal immigrant himself, but he was able under the policy which was then in operation to become entitled to remain here lawfully. The appellant, during the period of her first illegal visit, was confined in the United Christian Hospital where she gave birth to a daughter. No doubt, it was this fact which brought her status as an illegal immigrant here to the notice of the Immigration Authorities. As a result, she was repatriated to China on her discharge from hospital.

5. It has been submitted on her behalf and I accept that had the new born child been in a normal state of health, the appellant, as her mother, would have taken that child back to China with her. The child, however, was diagnosed as suffering from a complaint known as capillary hemangioma, a malfunction of the salivary gland. This required medical treatment in the form of facial surgery. It was because the child was in need of that specialised medical attention that the appellant - no doubt malting her decision on what she thought to be in the best interest of the child - decided to leave the child in Hong Kong.   The present conviction arises from the appellant's attempt to return here to rejoin her husband and that child.

6. There are other circumstances in the appellant's background which are also deserving of sympathy, but the circumstances which I have just related, to my mind, categorise her case as a very special one. As it is a very special case and she has, through Mr. Llewellyn, given an undertaking that on her release from prison and on returning to China, she will take the child with her and make an application in the proper way for permission to return here to rejoin her husband. The child, I am informed, is entitled to come here and the circumstances of the Appellant are such that her application will, no doubt, receive serious consideration.  I think, therefore, the justice of the case could be met if I quash the sentence which had been imposed and re-impose the sentence but suspend it for a period so as to deter the appellant from trying to return here illegally again and to encourage her to attempt to return in a lawful way. I therefore allow the appeal, quash the sentence and in lieu thereof, I order that she be imprisoned for 10 months, but suspended for 18 months.