R. v. YEUNG MIU CHUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 223 OF 1995

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J U D G M E N T

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1. The Appellant pleaded guilt to one charge of remaining in Hong Kong without the authority of the Director of Immigration. She was sentenced to 15 months imprisonment. She now appeals against sentence.

2. The sentence of 15 months imprisonment is in line with the guidelines laid down in So Man King. At the time of sentence, the learned magistrate had considered all the circumstances of the Appellant including her age of 27 and the reason for coming to Hong Kong was to look for her husband to find work. He considered that there was no ground for a departure from those guidelines.

3. Miss Ma for the Appellant submitted that the guideline could be departed from where are strong humanitarian considerations. She referred to AG v. Lam Ping Chung [1989] 1 HKLR 161 and So Man King [1989] 1 HKLR 142. Mr. Cheung for the Crown accepted that was the law and the question is whether in the present case there are grounds for departure.

4. Miss Ma produced on behalf of the Appellant a medical certificate from a hospital in China which certified that the Appellant's mother was suffering from cancer of the esophagus and she was in terminal stage. This certificate is dated 25th June, 1995. Miss Ma submitted that the Appellant did not know of her mother's illness until after she had come to Hong Kong and started to serve her sentence, being convicted and sentenced on 25.11.95. Miss Ma submitted that the Appellant had already served 9 months of her sentence and with the appropriate remission, she would be due for release in a month's time. She asked that the sentence be reduced to enable the Appellant to returned to the bedside of her terminally ill mother.

5. Reference was made to R v. Kwok Hau Ching MA 389/94 where Keith J. reduced a sentence of 12 months to one which enabled an Appellant on a similar offence to be immediately released and repatriated. The Appellant there was 60 and after her incarceration, her mother age 79 became critically ill. The sentence was reduced to enable her to see her mother before the latter died. Miss Ma submitted the present case was no different from the case of Kwok.

6. Mr. Cheung did not dispute the authenticity of the medical report.

7. Having regard to medical report, it would appear that the Appellant's mother is indeed terminally ill. It would be inhumane if the Appellant would not be allowed to return to her mother before she died especially when the Appellant has almost served her term of imprisonment. This is a proper case for a departure from the guidelines. The appeal against sentence is allowed and the sentence of 15 months imprisonment is reduced to a term to enable the immediate release of the Appellant and repatriation forthwith.