R. v. LIN SUET MUI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 547 OF 1996

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J U D G M E N T

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1. This is an appeal against sentence. The appellant pleaded guilty to an offence of being in possession of an identity card relating to another, and of an offence of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully. She was sentenced to 12 months' imprisonment on each charge, to run concurrently.

2. She was found in Tai Po on 10th April 1996 and questioned by police who thought she was behaving suspiciously. She produced an identity card which was not hers. She said that she had entered Hong Kong on the previous day. She said that she had found the card at a refuse collection station and that she intended to use it to find a job.

3. She appeared the following day before the magistrate. It was then said to the magistrate by counsel who represented her that she had an aged grandmother, aged 80 years, that her husband was a drug addict, and that her son who was aged two years had contracted some kind of ancestral disease - although I am not sure what that means - and that she needed money to cure that, she being the sole breadwinner of family. That is why, so it was clearly implicit from what was put to the court, she came to Hong Kong.

4. Now stories of that kind are paraded before the courts, both at first instance and on appeal on almost every single occasion in this category of case. Nevertheless the magistrate then accepted what was said. In a full and helpful Reasons for Sentence, he referred to a number of authorities which suggested that if an illegal immigrant comes to this territory when the illness or deprivation of which she was complains, or which she now prays in aid, are already known to the immigrant, the reduction in sentence which strong humanitarian considerations normally attract should not be made.

5. This appellant has advanced before me a quite different story when she first appeared before me on 28th August. She showed me a certificate which relates to a 41/2 year old boy who was said to be in hospital with asthma and bronchitis, and in need of his mother. She also told me that she had entered in 1994 on a two-way permit and had overstayed; so the story which she gave to the arresting officer was untrue. She thought, she say, that that story would draw a lesser penalty.

6. I am advised by Mr Shum who appears for the Crown that inquiries had been made and that it appears that she did indeed enter Hong Kong in 1994 on a two-way permit. But it cannot be said with any certainty whether or not she returned. In any event, he assures me that the tariff of 15 months laid down for remaining in Hong Kong having entered unlawfully is, for those from the Mainland, precisely the same in cases of overstay. I shall accept what he says about that.

7. I adjourned the matter for a few days to see whether the bona fides of the medical certificate could be verified. I am told today that inquiries have been made through Interpol, but their result will not be known for a period of between 4 to 6 weeks. I have also today spent sometime in questioning the appellant to ascertain further details from her. The story which she has given to me and the one she gave to the magistrate are two stories which are loaded with inconsistencies. For example, she told the magistrate, through her counsel, that her son was aged two years. The certificate which she has produced says that he is aged 41/2. She told the magistrate, through counsel, that she had a grandmother aged 80 who was the only person looking after her son. And today she has told me that she has a grandmother who is aged 56, and another grandmother aged 77 in Hong Kong who has died. When pressed earlier today, she said there is indeed a grandmother of 80 but she was not worth mentioning. which begs to the question why she was mentioned to the magistrate. Then she says there is an aunt who is 55 and lives about half an hour away from her home in the Mainland, and a matter of moments ago, she told me that the person who was looking after her child in April of this year when she appeared before the magistrate was not her grandmother at all but was an aunt aged 71. She told the magistrate that she came to Hong Kong on 9th April 1996 to make money in order to treat an ancestral disease which her son has. Now she tells me she came in 1994. And whatever disease he has seems now to be cured he has very recently developed bronchitis and asthma. She has also given to the magistrate a patently false tale of how she came by the identity card.

8. It is in the circumstances, almost impossible to believe the accounts which she has given.

9. Stories which pray in aid suggested illness of a child are very difficult to address because, as is intended, and as in the odd case may be justified, they draw heavily on the sympathy of the court, and the concern that the frequency with which false stories are advanced devalue the credibility of the one story that may be true. The certificates which are issued are frequently thought to be bogus. The fact is that the type of family crisis which is presented in this case is the type that arises in virtually every such case. The courts must, in those circumstances, do their best to gauge the truth of the matter and then to ask whether the facts are such as to warrant a reduction in sentence. That exercise must have regard, however, to the principle that those who come here with knowledge of an existing illness or of other hardship cannot then pray that illness or hardship in mind if caught committing this type of offence.

10. Magistrates have a difficult task in dealing with immigration offences, difficult because these offences are of a different calibre altogether from the run of the mill criminal offences which come before them, and difficult because against that background they are expected to apply with some rigidity the tariffs which are now established. For appellate courts then to buckle whenever this type of tale is advanced undermines their task, and introduces uncertainty in a category of case where policy considerations have resulted in clear guidelines. That is not to say that there will never be cases where urgent and serious new circumstances dictate that strong compassionate grounds exist for the reduction of a sentence. But the burden is, I think, on an appellant to show that such circumstances exist.

11. I am far from satisfied in this case that the story which has been advanced is true and even if true, I am not at all satisfied that it is as urgent as is suggested. If any of her story is true, she knew full well when she came to Hong Kong that her son was not a strong youngster. The position in any event is far from hopeless. There is an aunt that lives only, about half an hour away, so I am told.

12. The fact of the matter is that the sentence imposed by the magistrate was below the normal tariff and is in the circumstances unimpeachable. Should it transpire that the situation as proved by the current investigation reveals a serious and urgent situation, then this appellant can make an application to the executive for an early release. In the circumstances, there appear to me to be no grounds for overturning the sentence imposed by the magistrate and accordingly this appeal against sentence is dismissed.