HKSAR v. CHAN YUK LAM

HCMA495/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.495 OF 2003

(ON APPEAL FROM WSCC 347 OF 2003)

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REASONS FOR JUDGMENT

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1. This is an appeal against sentence only.

2. The appellant was convicted on her own plea of an offence of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177, being the 1st charged offence; and of an offence of breaching a condition of her stay in Hong Kong by overstaying the allowed period, contrary to section 41 of the Immigration Ordinance, Cap.115, being the 2nd charged offence. In respect of the 1st charged offence the appellant was sentenced to 18 months' imprisonment. In respect of the 2nd charged offence she was sentenced to two months' imprisonment. Both sentences were to run concurrently, that resulted in a totality of sentence of 18 months' imprisonment.

3. The facts of the case were that on the day of her arrest, the appellant had produced somebody else's identity card to police when stopped for an identity check. She had at that time overstayed her permitted period of stay in Hong Kong by nearly 10 months. At the time of her arrest, the appellant was some seven months pregnant.

4. The appellant had been previously convicted in 2001 and again in 2002 of using a forged Hong Kong identity card and had in 2000 being convicted of breaching a condition of her stay in Hong Kong and in 2001 of entering and remaining unlawfully in Hong Kong. She complains now that her sentences in the present case were too severe. She advances in support of that complaint that her imprisonment causes her unusual hardship as she has a child who was born shortly after she commenced her sentences for these offences and that she finds it difficult to live in prison and look after her child there. The magistrate was aware that the appellant was pregnant when she appeared before him for sentence. In that regard, he said :

" I considered in the circumstances whether I should give a discount to the defendant because of her pregnancy recognizing as I did that discounts in sentence are often afforded to pregnant illegal immigrants or overstayers. However in the defendant's case I did not consider it justified given her previous convictions and the fact that she had only become pregnant during the time she was overstaying. Her pregnancy had not prompted her to surrender to the authorities which would have justified a discount in sentence. Instead she took the risk and overstayed until her arrest in March 2003. I decided therefore it was not appropriate to discount the 18 months prison term on Charge 1."

5. It is true that the present appellant was not pregnant when she came to Hong Kong but that she fell pregnant whilst co-habiting here in Hong Kong with her boyfriend whom she met during the period of her overstay.

6. When she was arrested for the present offence, she was in a relatively advanced state of pregnancy. In other words, she must have become aware of her pregnancy earlier in the period of her overstay yet have chosen to continue to stay in Hong Kong and indeed to attempt to further that overstay by the use of another person's identity card.

7. It may well be that an illegal immigrant to Hong Kong who arrives here not aware of her pregnancy will be allowed some humanitarian consideration by the courts, as in R. v. Lee Yuk Ying, HCMA786/1992; HKSAR v. Chan Ying, HCMA1023/2001, HKSAR v. Wu Fei Wan, HCMA985/1997. The essence of those cases is that the offenders discovered their pregnancy only after arriving in Hong Kong and often only after their arrest. Indeed it has become almost customary to allow first time immigration offenders considerable discounts in sentence because of their pregnancy.

8. In R. v. Baltazar Cecilia, HCMA992/1996 Leonard J dealt with the case of a pregnant offender who come to Hong Kong knowing she was pregnant and who, like the present appellant, had previous convictions. He said inter alia ;

"Had this Appellant been a first offender, it might well have been possible to take a lenient course and to order her discharge in time for the birth of the baby to take place outside prison but in the present case, this Appellant came to Hong Kong knowing full well that she was already subject to a suspended sentence and knowing full well what the possible consequences would be if she was caught."

For that and other reasons he dismissed the appeal against sentence.

9. It seems to me that in considering the mitigation of sentence upon a humanitarian ground such as pregnancy, each case will depend substantially on its own facts. The magistrate in the present case was entitled to take into account any previous history of similar offences by the present appellant. That is because a practiced offender is well aware of the risks involved in producing a false or forged identity card, and by taking that risk whilst aware of her pregnancy, an offender such as the appellant may considerably undermine any basis for a subsequent discount of sentence based upon purely humanitarian considerations regarding her pregnancy. Additionally, the persistent nature of the appellant's offending makes the present offence somewhat more serious in the eyes of the community than would be the situation in the case of a first offender. The appellant, from her history, has treated Hong Kong's immigration laws with a large measure of contempt.

10. A decision to refuse to allow the appellant some mitigation of sentence because of her sentence was no doubt a difficult one for the magistrate. No one wishes to see a child reared in prison even for a few months. But given the appellant's previous offending, the magistrate was entitled to conclude that questions of clemency in this case are secondary to the need for a deterrent sentence. In my view, the magistrate was entitled to refuse to discount the appellant's sentence on the grounds of her pregnancy.

11. Further given the appellant's previous history of similar offences involving forged or false identity cards and of overstaying in Hong Kong, the magistrate was entitled to enhance the sentence in respect of the 1st charged offence from 15 months after plea to one of 18 months' imprisonment.

12. Finally, the appellant relies upon a further humanitarian plea that she is suffering from suicidal thoughts. She raised this before the magistrate. He took the precaution of obtaining a psychiatric report in respect of the appellant. I took the precaution of asking for a further psychiatric report when the appellant made the same complaint before me. Both reports were to the effect that upon examination the appellant presented as normal with no psychiatric symptoms or abnormal perceptions or mood disturbances, though she appeared worried and may possibly have experienced some adjustment problems in raising her baby in prison.

13. In my judgment from those findings, there is no basis for any humanitarian discount of sentence based on the appellant's claimed psychiatric difficulties.

14. For the above reasons, the appeal against sentence is dismissed.