HKSAR v. YEUNG CHI YEE

HCMA 631/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 631 OF 2001

(ON APPEAL FROM NKCC 3632/2001)

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J U D G M E N T

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1. On 6 June of this year in North Kowloon Magistracy this Appellant pleaded guilty to an offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully here. She was sentenced to a term of 15 months imprisonment and it is against that sentence that she appealed upon the ground that it was too severe. I dismissed the appeal on the 31 August. These are my reasons.

2. In his reasons for sentence the learned magistrate, inter alia, said the following:-

"(1) The appellant appeals against sentence of 15 months imprisonment having pleaded guilty to one charge of remaining in Hong Kong .... The duty lawyer represented the appellant.

(2) The admitted facts were that on the 5th June 2001 the appellant (together with ... other defendants) was found inside an unlicensed massage establishment (in) Nathan Road. The appellant admitted she was an illegal immigrant and had sneaked into Hong Kong to find a job.

(3) The appellant was prosecuted pursuant to the current policy on the prosecution of illegal immigrants being a person found at a place of employment. I was satisfied from the admitted facts the appellant was found in a place of employment (see CHUNG Kwan-wai [1992] 2 HKCLR 159).

(4) In SO Man-king [1989] 1 HKLR 142 the Court of Appeal held that allowing for a plea of guilty a sentence of 15 months imprisonment should be used as the basic guideline unless there were strong humanitarian considerations to depart from the guideline.

(5) In passing sentence I took into account the appellant's clear record. There were no strong humanitarian grounds whereby I could depart from the guideline.

(6) The appellant was 23. In the Attorney General v. TAI Man-bing [1989] 1 HKLR 553 it was held that the appropriate sentence for unlawful entrants, even aged only 18 was 15 months imprisonment."

3. Before me, the Appellant said that she had been 'cheated' in coming to Hong Kong; that as a consequence of her sentence her younger brother in the Mainland had had to cease his schooling; that she was remorseful; that she knew she had done wrong and that she wanted to return to the Mainland as soon as possible.

4. Whilst I have considerable sympathy for the Appellant in the predicament in which she now finds herself the sentence which the learned magistrate imposed upon her and the reasons which he gave for that sentence cannot be faulted. It was for those reasons that I dismissed this appeal.