HKSAR v. CHEUNG SIU WAH

HCMA 950/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 950 OF 1998

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J U D G M E N T

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1. The Appellant was sentenced on 21st August 1998 on one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. She was sentenced to a period of 12 months' imprisonment.

2. The facts were that she was apprehended in premises which were being operated as a vice establishment and admitted that she had entered Hong Kong illegally without proper documentation, and that she had been working as a prostitute for one day in the premises where she was found.

3. The learned Magistrate, very properly, considered the sentence in the manner which he ought and arrived at a perfectly appropriate sentence of 12 months' imprisonment. It was brought to his attention that she had landed in Hong Kong whilst pregnant and that she had come to Hong Kong fully aware of that fact. He commented, and I agree with him, that she did not regard her pregnancy as any bar to prostitution and it therefore seemed, he said, illogical that it be a bar to incarceration. I agree with that.

4. I have before me, however, a number of authorities which have been passed in respect of Magistracy Appeals : R. v. Kung Ling Chu, MA 808 of 1996, R. v. Moi Hoi Ying, MA 236 of 1997, R. v. Chow Choi Wah, MA 351 of 1997 and HKSAR v. Chau Ping Ping, MA 571 of 1997 where the learned Judge in each case found, on appeal upon humanitarian grounds, that repatriation of the appellants prior to giving birth was appropriate in the circumstance. I propose to follow those cases and this appeal is allowed to the extent that the appellant should be released on 16th January 1999, which is one month prior to the expected date of delivery, to facilitate her return to her home so that she may give birth in the Mainland.

5. To that extent this appeal is allowed.