R. v. LAM AH LUNG and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 256 OF 1995

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J U D G M E N T

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1. The appellants, Lam Ah Lung and Cheng Fu Kwo, pleaded guilty each to an offence of remaining in Hong Kong without authority of the Director of Immigration and each was sentenced to 15 months' imprisonment.

2. The appellants were arrested in February 1995 after they had sneaked into Hong Kong and they were sentenced on 3rd February 1995.

3. The learned magistrate followed So Man King and Ors. [1989] HKLR 142 and having considered that there were no exceptional circumstances for a departure, imposed these sentences. These sentences are neither wrong in principle nor manifestly excessive.

4. After sentence, the 2nd appellant's sister in China wrote to the appellant on 26th February 1995 that his father was dangerously ill and warned him that if he did not return home soon, his wife would leave him and the children. A second letter from the sister dated 6th April 1995 informed the appellant that his father had no chance of recovery and his mother was also dangerously ill. On 20th April 1995, a telegramme was sent to him stating that his father was dying. On 3rd May 1995, a medical certificate dated 4th April 1995 from a hospital in China certifying the appellant's father aged 62 was suffering from oesophageal cancer and was admitted into hospital for operation. On 31st July, a further telegramme was received from his home informing him his father was in critical condition and his wife had left home leaving the children behind. These documents were submitted before the court by counsel for the 2nd appellant. Counsel urged me that the medical certificate had not been proved to be not authentic and there was no evidence to the contrary and I ought to consider whether there was sufficient humanitarian grounds for a departure from the normal sentence of 15 months. He referred me to R. v. Leung Wai Ying M.A. 1056 of 1993, where Stock J., though sceptic about the genuineness of letters of similar nature put before him in an appeal of similar nature, still regarded there might be a risk that they could be genuine and accepted and acted upon them.

5. Mr. Casewell informed me there was no contrary information to the claim by the 2nd appellant.

6. In these circumstances, I am prepared to accept upon these documents that there was strong humanitarian ground for a departure from the normal sentence of 15 months' imprisonment. Accordingly, I allow the appeal of the 2nd appellant and set aside the sentence of 15 months and substitute therefor imprisonment of such a term that would enable the appellant to be released immediately and repatriated forthwith.

7. As regards the 1st appellant, he informed me his parent were in poor health and need him to support the family. He had no documents to substantiate his claim and even if there were, this would not constitute strong humanitarian grounds for a departure from the normal sentence.

8. The appeal of the 1st appellant against sentence is dismissed.