HKSAR v. WA LAP KIU

HCMA639/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.639 OF 2002

(ON APPEAL FROM STCC 648 OF 2002)

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J U D G M E N T

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1. This is most unfortunate. The appellant is a 23-year-old married woman from the Mainland. She has a husband who is a Hong Kong resident and she entered Hong Kong unlawfully whilst in the latter stages of her pregnancy with a view to giving birth to her child in Hong Kong, hoping I expect, that this might somehow make a difference as to the child's immigration status. She was apprehended by police who found that she had been acting suspiciously. Because she was pregnant, she was taken to a hospital. It appeared after medical examination that she was not in urgent need of medical attention and she was then taken to a detention centre pending her repatriation. Later in the day she complained of pain and, given her condition, she was taken to another hospital and from there she was removed to the Prince of Wales Hospital. While she was there she absconded and that is the basis of the second charge of escaping from lawful custody. About a month later, she was apprehended at another hospital where she had gone for further medical attention.

2. On 29 May 2002 she pleaded guilty to the two offences with which she was charged, before Ms Remedios at the Sha Tin Magistrates' Court. The learned magistrate was obviously faced with a situation which called for a degree of sympathy and understanding. As she has rightly explained in her Statement of Findings, she was bound to have regard to the case of R v. So Man King [1989] 1 HKLR 142 which establishes a tariff of sentence of 15 months' imprisonment on the first charge of entering Hong Kong illegally.

3. Having regard to the appellant's situation which, of course, does call for sympathy, the learned magistrate thought it right to reduce the 15 months' tariff sentence to one of 10 months' imprisonment. She also imposed a two months' sentence in respect of the escaping charge which was to be served concurrently, making 10 months in all. From those sentences, the appellant now appeals to this court.

4. One can well realise the difficulties which face persons in the circumstances of this particular appellant. The child's father lives in Hong Kong and she came here, I am absolutely certain, hoping to do the best for her child when it was born. But as has been said so often by the court if a sensible immigration policy is to be maintained, the sentences contemplated in the case of So Man King will need to be imposed.

5. I also have had regard to three letters that have been read out in court. One is from her family in China, pleading for her release; one from a Legislative Councillor who has very helpfully recounted some of the mitigating features, and another one from a District Councillor, to the same effect. The appellant would like me to order her immediate release. The child has now been born and I have no doubt it is well looked after in the Correctional Service Institution where the appellant herself is being detained. She has proper access and contact with the baby. I have to decide whether this sentence was in all the circumstances too severe or wrong in principle. It seems to me that the learned magistrate rightly stressed the mitigating factors in this case. I am afraid there is no merit in this appeal. The appeal must stand dismissed.