R. v. KWOK HAU CHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 389 OF 1994

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J U D G M E N T

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1. On 5th January 1994 at San Po Kong Magistrates' Court, the Appellant pleaded guilty to two charges. The first was using a Hong Kong identity card belonging to another, and the second was remaining in Hong Kong without the lawful authority of the Director of Immigration. She was sentenced to twelve months' imprisonment on each charge concurrent. She now appeals against the sentences, the magistrate having granted her leave to do so out of time.

2. The Appellant is 60 tomorrow. She came to Hong Kong in January 1991 from China, and used someone else's Hong Kong identity card to get work as a domestic helper. She had been working as a domestic helper until her arrest in January 1994. Apart from her age, the only mitigation advanced on her behalf was that she was suffering from various ailments, none of which was serious.

3. The magistrate took the view - rightly, in my opinion that there were no sufficiently strong humanitarian reasons to justify a departure from the guidelines in So Man King [1989] 1 H.K.L.R. 142. However, the Appellant was much older than the usual illegal immigrant from China, and the magistrate reduced the sentence which she would otherwise have imposed for that reason.

4. However, the Appellant tells me today that things have changed since her sentence. She has since discovered that her mother, who is now 79 years old, was admitted to hospital, suffering from a heart condition which is described as critical. That is confirmed by a medical certificate from the hospital in which her mother now is, and by a letter from her village committee. The Appellant wishes, therefore, to be released so as to see her mother for the last time before she dies. There is no reason to doubt the truth of any of that.

5. In Liu Chi Ping (AR1/90), 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 illegal immigrant, occurs after the immigrant has arrived in Hong Kong. In such cases, a shorter sentence, or even a suspended term, might be appropriate.

6. In my judgment, the new facts upon which the Appellant relies do amount to a sufficiently strong humanitarian reason to justify a departure from the guidelines. The appeal against sentence will therefore be allowed. The sentences imposed by the magistrate, which were entirely appropriate on the material before her, will be set aside, and there will be in their place sentences of imprisonment on each charge concurrent which permit the Appellant's immediate release and her repatriation to China.