HKSAR v. LAM LAI HEUNG

HCMA 83/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 83 OF 2000

(ON APPEAL FROM WSCC 16778/1999)

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J U D G M E N T

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1. This Appellant appeals against a sentence of 12 months' imprisonment imposed in the Magistracy on a charge of Remaining in Hong Kong without the authority of the Director of Immigration after having Landed Unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.

2. The Appellant, whose husband is a Hong Kong resident, paid $5,000.00 to a snakehead to sneak into Hong Kong so that she could give birth to her child here and on 24 November 1999, she surrendered to Immigration Department in an advanced state of pregnancy. The baby was born on 28 November 1999.

3. The Magistrate in sentencing noted that this Appellant had a previous record. In 1992, she was sentenced to 15 months' imprisonment for possession of identity card of another person and a similar charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. That also earned a 15 month sentence but was to run concurrently with the first.

4. In 1994, Appellant was convicted again for remaining in Hong Kong without the authority of Director of Immigration and being in possession of an unlawfully obtained travel document. She was sentenced to 20 months in total. This present appeal is completely unmeritorious, in light of that record.

5. The Magistrate had the facts before him including the previous record. In the ordinary course of events, a further offence of this nature should have attracted a sentence of 18 months to 2 years' imprisonment. However, the Magistrate took into account the Appellant's circumstances, including the fact that she had just given birth to a child and he reduced the usual sentence of imprisonment to a very lenient one of 12 months.

6. Given that lenient sentence, I have no intention of allowing this appeal and this appeal is dismissed.