HKSAR v. CHAN HOI YING

HCMA760/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA760 OF 2000

(ON APPEAL FROM SPCC 4175/2000)

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J U D G M E N T

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1. This is an appeal against sentence. It is a straightforward case of remaining in Hong Kong without authority.

2. The appellant is aged 28 years. She pleaded guilty and was sentenced to a term of 15 months' imprisonment. She was stopped for an ID check and could not produce any proof of identity and admitted that she was an illegal immigrant. She has a previous conviction which was in 1994 for possession of a forged identity card and for remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully. She was then sentenced to 12 months' imprisonment on each charge, to run concurrently; a total of 12 months.

3. There is clear authority to the effect that a repeat offender can expect an upward revision from the 15 months' norm. The magistrate took a starting point, after plea, of 18 months' imprisonment, and then reduced that to 15 months as a matter of mercy in view of the fact that she was the sole bread-winner, and that she had to bear certain funeral expenses for her grandmother.

4. I do not think the appellant can have any complaint about the sentence, not in the light of the approach now well established and which is no doubt well known to all who would come into Hong Kong unlawfully from the Mainland.

5. The appellant tells me today that her parents are not capable of working; that she has a retarded brother who cannot take care of himself; that her father is unwell and that her grandmother passed away by reason of which she had expenses which drove her to come to Hong Kong to find money. She asks me, in the circumstances, to shorten her sentence.

6. This is an appeal court and my function is to ascertain whether the sentence of the magistrate was either wrong in principle or is manifestly excessive. If the circumstances outlined by the appellant to me about her family are true, one cannot but have the greatest sympathy for them. But the appellant should appreciate that circumstances of that kind are put forward to these courts in every single case of this kind. If the courts were to digress from the standard sentences imposed in such cases for reasons such as those put forward today, nothing would be left of the standard sentences and the guidelines that had been put forward, and Hong Kong would be flooded with immigrants here unlawfully, pleading hardship of this kind. Therefore, save in the most exceptional circumstances, the courts have to harden themselves in the face of such accounts. I note in this particular case that the poor condition of her father and brother were conditions well known to the appellant before she came to Hong Kong, and that by reason of her previous experience here in 1994, she must have known full well the risk that she was taking.

7. In the circumstances, the sentence imposed by the magistrate was neither wrong in principle nor manifestly excessive, and this appeal against sentence is dismissed.