THE QUEEN v. CHEUNG SIU MIN

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1538 OF 1990

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BETWEEN

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JUDGMENT

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1. The appellant, Cheung Siu-min, was convicted after a plea of guilty on the 8th September, 1990 to being in possession of a forged identity card, he being an illegal immigrant from Mainland China.

2. I have heard a large number of appeals from illegal immigrants from China, and in most of these cases, the principle ground relied upon is the sickness or death of a father or mother or other member of the family. Where such grounds are unsupported by medical certificates or official documents, they are of little merit. Where the appellant is able to show by official documentation or otherwise that a serious situation has arisen at home, then the court is entitled and does grant relief on humanitarian grounds.

3. In this case, the appellant presents a tragic set of circumstances. The collapse of the family home during a typhoon resulting in the death of the father and in the crushing of the mother rendering her paraplegic. The appellant has submitted letters from relatives, a certificate from a hospital and a further document from the Village Committee which confirms what he says has taken place while he has been in prison in Hong Kong. It has to be said that the record of what took place before the magistrate shows the appellant as having said to the magistrate, in mitigation, that his "old man passed away last year"; and I have to consider whether this puts in doubt the validity of the documentation that has been presented to me. I have to decide whether this is a conspiracy between the appellant, the medical authorities in China, the Village Committee and his family to deceive the court, or whether it might be, as claimed by the appellant, that the record in the lower court does not accurately reflect what he said, in that there might have been some problems in interpretation.

4. This has caused me considerable concern as without that record, I would have no hesitation is allowing the appeal. I have decided, on balance, to accept the documentation as valid, and on the basis of the information they contain, I propose to allow the appeal on humanitarian grounds, and to reduce the sentence to one which will allow the immediate release of the appellant.

5. I should, perhaps, add that Mr Chapman quite probably complains that the documentation in this case was not served on the Crown until a short time before the appeal, and certainly not in time for the Crown to do any checking on the validity of the documents. Appellants who rely on such documentation should be on notice that in future, the court may not be prepared to consider such documents where insufficient time has been given to the Crown to check their validity.