HKSAR v. HON NGAN SIU

HCMA38/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.38 OF 2002

(ON APPEAL FROM WSCC 14051 OF 2001)

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J U D G M E N T

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1. The appellant pleaded guilty before a magistrate to a charge of aiding and abetting, counselling and procuring an illegal immigrant to remain in Hong Kong without the authority of the Director of Immigration. She was sentenced to nine months' imprisonment. She now appeals against that sentence on the ground that it is too severe.

2. The admitted facts which are very simple are these : the appellant and one female Hon Oi Kuen ("the illegal immigrant") claimed to be clanswomen. On 29 November 2001, the appellant came to Hong Kong as a visitor and was permitted to stay until 29 December 2001. Mr Hon Kam Hin, the appellant's brother, rented a flat at Flat A8, 3/F, Block A, Kwan Yik Building Phase II, 169-178 Connaught Road West, Western, for the appellant to stay. At about 5 a.m. on 11 December 2001, the illegal immigrant was due to give birth and the appellant called the police. The appellant and the illegal immigrant were eventually taken to Queen Mary Hospital. It was at that stage the status of the pregnant woman came to light when the appellant made an admission that she had harboured the illegal immigrant. Subsequent enquiries revealed that the illegal immigrant sneaked into Hong Kong from Chung Ying Street at Sha Tau Kok and took a taxi to Western area looking for her relatives to give birth to her baby.

3. Under caution, the appellant told the police that she came across the illegal immigrant at Centre Street Market and invited her to live at the above location and subsequently knew that the woman was an illegal immigrant.

4. These were the facts which the court below were told and which the appellant admitted. In her Reasons for Sentence, the magistrate took the view, and quite rightly so, that it was too much a coincidence that the person the appellant met happened to be her clanswoman. I would even go even further to say would anyone have invited a clanswoman to stay at her own home when the illegal immigrant was in such an advanced state of pregnancy. This would be indeed very unusual. The story is simply too good to be true. Consequently, the magistrate imposed the sentence of nine months' imprisonment.

5. Before me this morning, Mr Bernard Yuen of counsel submitted, if I understand him correctly, that there is no evidence that she had done this for gain and there is no evidential basis that she took an active part in helping the illegal immigrant to remain in Hong Kong. I cannot agree with his submission. Mr Yuen also submitted that the court should exercise its discretion on humanitarian grounds to reduce the sentence. We must realize Hong Kong is a very small city with very limited resources and for our own protection and our own survival, we cannot afford to allow a large number of people to come and stay here. This does not mean that we are not sympathetic. On the contrary, we are very sympathetic. The simple fact is that we are not in a position to look after others. If we allow this to happen, I am sure if we do this once, then we would see a massive number of pregnant women coming to Hong Kong to give birth.

6. Ms Wan quite rightly pointed out in her written submission that if this is allowed to happen, the impact on our society would be far-reaching. It is also right to say without people helping the illegal immigrants, there will be fewer, I would not say no, people to come to Hong Kong illegally either to seek employment or to give birth. We have to take a serious view of this. We must not send any wrong signal across the border that we would not impose heavy sentences or punishment for people who have no respect for our law or any regard to the interest of our society.

7. I would uphold the sentence imposed by the magistrate. The appeal is dismissed.