HKSAR v. SHUM KWOK PO

HCMA190/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.190 OF 1999

--------------------

--------------------

-----------------------

J U D G M E N T

-----------------------

1. This is an appeal against sentence.

2. The Appellant was, on his own plea, convicted of three charges before a Magistrate, namely :

(1) Theft, contrary to s.9 of the Theft Ordinance, Cap.210, for stealing a Hong Kong identity card, the property of his relative in whose home the Appellant was lodging.

(2) Breach of Condition of Stay, contrary to s.41 of the Immigration Ordinance, Cap.115, in that, he being a person permitted to land in Hong Kong did breach a condition of stay in force in respect of himself and remained in Hong Kong after that date.

(3) Possession of an Identity Card relating to Another Person, contrary to s.7A(1A) of the Registration of Persons Ordinance, Cap.177, in that, he had in his possession the identity card mentioned in the 1st charge.

In respect of the theft of the identity card charge, he was sentenced to 15 months' imprisonment and that sentence also applied to the 3rd charge of Possession of the Identity Card. For the Breach of Condition to Stay, he was given three months by the Magistrate. The sentences were ordered to run concurrently. His case was disposed of in that manner by the Magistrate on 3 November 1998.

3. On 21 January 1999, the Appellant applied before the same Magistrate for leave to appeal against his sentences out of time on the ground that the Appellant's father had terminal cancer and was in hospital in China. The Magistrate granted leave and that is why the appeal is before me now.

4. The appeal was first fixed on 18 May 1999 when the prosecution applied to adjourn for checking the authenticity of the documentation produced by the Appellant to the Magistrate when seeking leave. However, the prosecution has been unable to check whether the documents are authentic even up to now.

5. The only ground of appeal raised by the Appellant is that he is asking for the mercy of this Court to reduce the sentences on humanitarian grounds because his father is extremely ill. Mr Chan, for the Appellant, refers me to several authorities dealing with this ground. In R. v. Kwok Hau Ching, HCMA389/1994 (19 July 1994, unreported), Keith J. had this to say :

"In Liu Chi-ping (AR 1/90), the Court of Appeal took the view that humanitarian considerations could not be found in cases where a relative of the illegal immigrant, even a close relative, had already fallen ill by the time the illegal immigrant came to Hong Kong. However, in many cases since then, it has been observed that the position may be different where some unexpected disaster, such as the severe illness of a close relative of the immigrant, occurs after the immigrant has arrived in Hong Kong. In such cases, a shorter sentence, or even a suspended term, may be appropriate."

In R. v. Lee Wah, HCMA486/1994 (26 July 1994, unreported), the same Judge repeated what he said in Kwok Hau Ching. Indeed, the same approach was adopted by Patrick Chan, J. (as he then was) in the case of HCMA690/1993 (16 November 1993, unreported). I am also referred to the case of R. v. Cheung Mei Yik, Crim. App. No.442 of 1990 (25 January 1991, unreported) where the Court of Appeal also took into account genuine humanitarian reasons verified by documentary evidence.

6. In the present case, the Appellant by his affirmation adduces in evidence a document bearing the name of his father issued by the Fujian Yong Chun Hospital which states that his father was admitted to the Out-patient Unit on 12 November 1998 and at the back of this document, there were set out various conditions as diagnosed apparently by a doctor of that hospital who examined the Appellant's father, including a number of symptoms pointing to the fact that there was something seriously wrong with the liver of the patient, and it concluded that on 10 January 1999, when the patient was re-admitted for examination, he was in a critical condition and admitted for treatment.

7. During the hearing, I asked Mr Chan whether the father's condition had deteriorated or had improved and because of the fact that I accepted the document being authentic, I allowed Mr Chan to produce letters to the Appellant from his relatives. Two letters were produced as a result, both of them were dated in June 1999 which show that the Appellant's father's conditions had in fact worsen and he had become almost a "vegetable", if I may be excused to use the term without any sense of disrespect.

8. In the circumstances, I am agreeable to vary the sentences imposed by the Magistrate on the Appellant. Since the Appellant had served a substantial amount of his sentence - he has been in custody since 29 October 1998 - he had served, I think, over eight months of his sentence. I am agreeable to take the same step as taken by my bother Keith J. to allow this appeal by reducing the sentences to one which permits the Appellant's immediate release and his repatriation to China.

9. The appeal is allowed and the sentences are reduced so that the Appellant can be released immediately for his repatriation to China.