R. v. LAM PING SANG

IN THE HIGH COURT

1994, No. 737

Magistracy Appeal

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JUDGMENT

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Litton, J.A.:

1. This is an appeal against sentence by Lam Ping-sang who was convicted at the Western Magistracy by Mr Andree-Wiltens on her own plea to one charge of remaining in Hong Kong without the authority of the Director of Immigration contrary to section 38(1)(b) of the Immigration Ordinance.

2. The appellant is aged 44 and has no previous convictions. She came from Fujian Province and has a husband; at the time of the offence she had four children.

3. She was arrested on the 18 February this year when the police acting on information conducted a search at an old peoples home and discovered the appellant working there. She was accordingly arrested and charged. She had entered Hong Kong illegally about a week before then.

4. The magistrate quite rightly approached this case as one coming within the guidelines laid down by the Court of Appeal in the case of SO Man-king (1989) HKLR 142. There is nothing in the circumstances of the case which suggest that the magistrate in his approach either erred in principle or had imposed a sentence which is manifestly excessive. The policy reasons behind the guidelines in SO Man-king are that this community must be protected from the influx of illegal immigrants from China; the guideline sentence of 15 months' imprisonment is intended to act as a deterrent to offenders. It is therefore necessary for the court to adopt a harsh line even when in some cases there could be said to be "humanitarian" grounds for leniency.

5. This case, however, is exceptional. What happened was this. The appellant, after she had served her sentence for a few months, lodged an application for leave to appeal out of time. The grounds for making the application were that whilst she was in detention her youngest daughter was drowned in an accident and this has had a traumatic effect upon her husband who in consequence had to be hospitalized. When the matter was put before the magistrate this is what he said:

"I felt it right that the appellant be given the opportunity to place this new information before the Court, because if it is proved to be true, then the Court may well take a different view of the correctness, now, of her sentence."

6. Mr Moorfoot in this court took that to be in effect an exercise of the magistrate's discretion under section 114(a) of the Magistrates Ordinance to extend the time for this appellant to appeal against sentence. Thus the matter has been put before me.

7. It is difficult for this court in the exercise of its appellate jurisdiction to determine what are "strong humanitarian considerations": those factors which the Court of Appeal in SO Man-king suggested might justify sentencing courts varying from the normal sentence of 15 months' imprisonment. In this regard the lower courts are much more experienced. However it is clear from the humane way the magistrate Mr Andree-Wiltens approached the application for enlargement of time that he regarded the factors outlined above as constituting strong humanitarian considerations. Otherwise he would not have acted as he did. I feel that I must defer to his wider experience and treat this case as one with unusually strong humanitarian grounds.

8. For the reasons outlined above I allow this appeal, discharge the sentence imposed by the magistrate and substitute a term which would enable the appellant to be discharged from prison today.