HKSAR v. HUNG SAU LING

[English Translation – 英譯本]
HCMA 76/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 76 OF 2014

(ON APPEAL FROM STCC NO. 113/2014)

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REASONS FOR JUDGMENT

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1.  This judgment concerns two cases of Breach of Conditions of Stay (Overstaying) heard in the Shatin Magistracy. They are now dealt with together as they involve the same legal issues.

2.  HCMA 76/2014 is an appeal from STCC 113/2014. I will refer to the appellant in this case as D1.

3.  HCMA 77/2014 is an appeal from STCC 127/2014. I will refer to the appellant in this case as D2.

4.  They both pleaded guilty, and were each sentenced to 12 months’ imprisonment by the magistrate. They appealed against their sentences.

5.  I announced the decision to allow their appeals on 22 April, and reduced D1’s sentence to seven months and D2’s to six months.  I now give my reasons in writing.

Facts

6.  D1 came to Hong Kong on 18 May 2013 as a visitor, and was allowed to remain until 16 August 2013.  She overstayed and was arrested on 17 November 2013 when she went to the hospital to deliver a baby. She had overstayed for about three months.

7.  D2 entered Hong Kong on 25 July 2013 as a visitor, and was allowed to remain until 1 August 2013.  However, she did not leave Hong Kong before the deadline.  She was arrested on 2 December 2013 when she went to the hospital to deliver a baby. She had overstayed for about four months.

The Magistrate’s Reasons for Sentencing

8.  The magistrate had taken into account the background of the two appellants in sentencing:

D1

“4. The defendant is 36 years old, married. She and her husband are not Hong Kong residents, and her husband is residing in the mainland. They have two daughters, the younger one being the newborn baby involved in this case. Their elder daughter is now ten years old, studying in Hong Kong and living with a friend of the defendant.

5. The defendant claimed that she had an ectopic pregnancy in 2012 and had received surgery. When she entered Hong Kong in May 2013, she went to see a doctor after feeling unwell, and was told that she had been pregnant for two or three months.

6. The defendant explained that she remained in Hong Kong to look after her elder daughter, taking her to and from school, and going through some formalities in relation to her studies. She forgot about the deadline of her stay. When it occurred to her that she had overstayed, she realized that she was in the wrong and was scared, consequently, she did not lodge an application for extension.

7. The defendant had no antenatal check-up records, nor did she make any delivery bookings with any hospitals in Hong Kong. She eventually sought help at the A & E Department of United Christian Hospital and gave birth to her younger daughter.”[1]

D2

“3. The defendant has no past criminal records. She is now 32 years old, living with her mother, younger brother and grandparents in Dongguan.

4. The defendant is an unmarried mother and has a boy friend on the mainland. She was already six months pregnant when she entered Hong Kong. She came to Hong Kong for shopping on her own, and it was her first time here. She initially could not adapt to the weather of Hong Kong and felt unwell. Later, when she had recovered, she found Hong Kong a ‘very comfortable’ place and decided not to return to the mainland but to overstay here. She has no relatives or friends in Hong Kong.

5. The defendant has no antenatal check-up records, nor did she make any delivery booking with any hospitals in Hong Kong. She eventually sought help at the A & E Department of Yan Chai Hospital, and gave birth to a baby.”[2]

9.  The magistrate attached much weight to the fact that the two defendants overstayed for the purpose of giving birth in Hong Kong.  She said:

“10. As early as February 2007, the Hong Kong Government has adopted the following policies and measures: mainland women who are 28 weeks pregnant or more are required to produce booking confirmation issued by a Hong Kong hospital. Otherwise, the Immigration Department will refuse their entry into Hong Kong. In December 2012, Hong Kong went further by strictly adhering to the policy of ‘zero quota’ for mainland women whose husbands are not Hong Kong residents to give birth in Hong Kong. Hospitals in Hong Kong stopped accepting delivery booking from this category of mainland pregnant women. In other words, mainland women who are less than 28 weeks pregnant are not required to produce booking confirmation when they entered Hong Kong as visitors. As a matter of fact, both the defendant and her boy friend are not Hong Kong residents. Under the ‘zero quota’ policy, the defendant is not entitled to make any delivery booking with any hospitals in Hong Kong.

11. Shatin Court deals with a large number of immigration cases. For the four days that I worked at Court One of Shatin Court in early January 2014, I have already dealt with three cases involving overstayers giving birth here. The two other cases apart from this one are STCC 108/2014 and STCC 113/2014. They entered Hong Kong as visitors in their early or middle stages of pregnancy, making it difficult for immigration officers to stop their entry. They did so to avoid the risk of being refused entry in their advance stages of pregnancy.”[3]

10.  She also made reference to the following cases:

(i) HKSAR v To Wah Mei[4]

(ii) HKSAR v Ng Bun Nga[5]

(iii) HKSAR v Lee Tak Ying[6]

(iv) HKSAR v You Shune[7]

(v) HKSAR v She Ling Chun[8]

(vi) HKSAR v Chan Yuk Lam[9]

11.  She adopted a starting point of 18 months’ imprisonment, and after taking into account their guilty pleas, she gave them a one-third discount of the sentence and sentenced each of them to 12 months’ imprisonment.

Grounds of appeal

12.  Both appellants were represented by counsel Miss Sezen Chong at the appeal hearing[10].  The grounds of appeal put forward by her can be summarized as follows:

(1) The appellants did not receive a fair trial, because:

(i) the appellants were unrepresented at the trial, and therefore were not given adequate legal advice and assistance, and were not afforded the human rights protection to which they are entitled;

(ii) the appellants’ right to silence was not protected. In particular, the magistrate failed to inform them that their coming to Hong Kong to give birth was an aggravating factor, nor did she remind them of their right to silence;

(iii) after asking the appellants questions and hearing their answers, the magistrate did not inform them of her intention to increase their sentences, nor did she afford them the opportunities to defend.

(2) The magistrate took judicial notice based on her personal experience that Hong Kong was facing a serious situation of having mainland women overstaying here to give birth. And she increased the sentences on that basis instead of on the basis of any evidence.

(3) The magistrate’s finding that the appellants came to Hong Kong for the purpose of giving birth was not the only reasonable inference. The magistrate had regarded this matter as an aggravating factor, but this was not based on any evidence.

(4) The magistrate adopted the sentencing guidelines in respect of the offence of illegal entry in sentencing the appellants.

(5) Having regard to the maximum penalty of this offence and having compared the sentences in the present case with the sentences in other cases involving similar offences, the sentences in the present case are manifestly excessive.

Discussion and consideration

Ground of appeal (1)

13.  Counsel for the appellants Miss Chong raised three main arguments to support her assertion that the appellants did not receive a fair trial.

14.  I will deal with these three arguments in turn.

Argument (i)

15.  After referring to the Hong Kong Bill of Rights Ordinance[11], the Basic Law, the International Covenant on Civil and Political Rights and a number of cases, Miss Chong submitted that the appellants should enjoy the following rights:

(1) As they were unrepresented, they should have been informed about their right to have legal representation;

(2) they should have free legal representation if necessary.

16.  The relevant provisions from the aforesaid legislations and treaty invoked by Miss Chong are as follows:

“Hong Kong Bill of Rights Ordinance

Article 11

Rights of persons charged with or convicted of criminal offence

…

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality –

…

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

Basic Law

Article 39

The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

Article 87

In criminal or civil proceedings in the Hong Kong Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.

International Covenant on Civil and Political Rights

Article 14

…

(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

…

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

…”

17.  Senior Public Prosecutor Miss Irene Fan, who represented the Respondent, cited HKSAR v Wong Chi Kwong[12] and submitted that:

“The right to have free legal representation is not absolute. Even if the defendant was unrepresented at the trial, it does not mean that his conviction must be quashed. The important thing is whether there are sufficient grounds showing there is a resultant risk that the defendant will be prejudiced. Factors to be considered include: the complexity of the case, whether the case involves any legal issues, and whether the defendant is capable enough to handle the case.”

18.  In considering this issue, I have taken into account that it is the Duty Lawyer Service which provides free legal representation in the Magistrates’ Courts.  From a letter produced by the appellants, in which the Duty Lawyer Service replied to the questions raised by the solicitors’ firm representing the appellants, I come to know the following information:

(i) Legal representation is only provided in respect of offences covered by the list prepared by the Duty Lawyer Service which is revised from time to time.

(ii) As to the offence of Breach of Conditions of Stay, the Duty Lawyer Service will only provide legal representation under the following circumstances:

(a) the offender has worked in Hong Kong;

(b) he has overstayed for two years or more;

(c) the conditions of stay breached are:

(a) not to take any employment, or

(b) not to establish or join in any business.

(iii) The two appellants in this case were therefore not covered in the service.

(iv) Starting from 7 February 2014 (after the trial of this case), the Principal Magistrate of the Shatin Magistracy will inform the Duty Lawyer Service about cases involving mainland women who have stayed and given birth in Hong Kong.  If the Duty Lawyer Service perceives that the sentence on a plea of guilty may be an imprisonment term of six months or more, it will exercise its discretion to decide whether or not to provide legal representation.

19.  The right to have free legal representation is not absolute.  The Duty Lawyer Service has its established policies and principles regarding the offences to be covered.

20.  The Principal Magistrate’s approach is desirable.

21.  To my understanding, a notice including information about instructing lawyers will be given to all defendants in the Magistrates’ Courts. Where practicable, this notice should be given as soon as possible.

22.  In the circumstances of the present case, my predominant task is to decide whether the sentences imposed by the magistrate are appropriate.

23.  The Duty Lawyer Service will have regard to the decision in the present case when it is reviewing the Standard List of Offences or deciding how to exercise its discretion about the arrangement of legal representation.

Arguments (ii) and (iii)

24.  I find that these two arguments can be dealt with together.

25.  The court will do its best to protect the right to silence.  However, a magistrate is duty bound to ask an unrepresented defendant questions before sentencing to find out if there are any mitigating factors in the case.

26.  Caution must be exercised when dealing with an unrepresented defendant, to prevent the situation in which the defendant inappropriately discloses some aggravating factors without offering any explanations.

27.  After examining the transcript, I find that the magistrate was overzealous in her attempt to find out the truth.  Some of the questions were improper in that they sound like cross-examination.

28.  In the circumstances, I agree that to be fair to the appellants, the court should ignore what was said at the trial and hear mitigation from Miss Chong afresh.  Senior Public Prosecutor Miss Fan has also fairly acceded to this approach.

Ground of Appeal (2)

29.  Overstaying cases handled by the Immigration Department are mainly dealt with at the Shatin Magistracy.  It is not surprising for a magistrate serving at the Shatin Magistracy to know that the number of this type of cases is significant.

30.  The magistrate said during the four days when she was working in Court One of Shatin Court, she had already dealt with three cases involving overstayers giving birth here.  She mentioned that merely to illustrate how bad the situation was.  As she had pointed out in paragraph 11 of her Reasons for Sentence: the number of immigration cases handled by Shatin Court is substantial.

31.  However, there are still no full details before me showing how bad the situation actually is in relation to this type of cases.

Ground of Appeal (3)

32.  Miss Chong criticized the magistrate’s finding that the appellants came to Hong Kong for the purpose of giving birth, saying that there was no sufficient evidence to support that finding.

33.  In regard to D1’s case, the magistrate explained how she came to her conclusion as follows:

“5. The defendant claimed that she had an ectopic pregnancy in 2012 and had received surgery. When she entered Hong Kong in May 2013, she went to see a doctor after feeling unwell, and was told that she had been pregnant for two or three months.”

and

“11. The defendant was evasive on the question of when she came to know she was pregnant. She first alluded to an ectopic pregnancy, and only clarified later that the ectopic pregnancy happened in 2012. She also claimed that she was aware of her pregnancy only after her arrival in Hong Kong. By rough calculations, the defendant was already three and a half months (14 weeks) pregnant when she entered Hong Kong in May 2013, and it is not her first pregnancy. I find that she was aware of her pregnancy before her entry.”

34.  I find the magistrate’s analysis reasonable. However, due to my earlier observation of what happened during the hearing, I will not base my considerations directly on the magistrate’s judgment.

35.  In this case, as can be seen from the facts admitted by D1, she had been overstaying here till she gave birth in a hospital.

36.  When D1 applied to submit further evidence, the respondent raised no objection.  I also think it is fair to do so.

37.  According to the new evidence, after D1 had had a salpingectomy on the mainland in July 2010, she was told by the doctor that she would not be able to conceive again.  When she came to Hong Kong on 13 May 2013, she had no idea at all that she was pregnant.  She was only aware of her pregnancy on 31 May, when she sought treatment after feeling unwell.

38.  Even if this evidence is fully accepted, it shows that D1 was aware of her pregnancy shortly after her arrival in Hong Kong.  She chose not to leave when her stay expired on 16 August.  Instead, she overstayed for three months and gave birth in a hospital on 17 November.  The court is fully entitled to infer that she overstayed for the purpose of giving birth in Hong Kong.

39.  Miss Chong submitted that it was not D1’s only reason to remain in Hong Kong, she also needed to look after her elder daughter and arrange for her schooling.

40.  I find this submission difficult to accept.  D1 knew perfectly well that her limit of stay expired on 16 August.  Moreover, her (elder) daughter had already started school for quite some time when she gave birth.  I find that D1 remained in Hong Kong for the main purpose of giving birth.

41.  With regard to D2, the magistrate observed that:

“4. The defendant is an unmarried mother and has a boy friend on the mainland. She was already six months pregnant when she entered Hong Kong. She came to Hong Kong for shopping on her own, and it was her first time here. She initially could not adapt to the weather of Hong Kong and felt unwell. Later, when she had recovered, she found Hong Kong a ‘very comfortable’ place and decided not to return to the mainland but to overstay here. She has no relatives or friends in Hong Kong.”[13]

42.  Even if the information obtained from the conversation between the magistrate and D2 is excluded, it can still be deduced merely from the facts admitted by her that she was already six months pregnant when she entered Hong Kong.  She was allowed to remain for seven days, but she overstayed for four months, obviously for the purpose of giving birth in Hong Kong.

43.  Therefore, I am certain that both appellants overstayed in Hong Kong for the purpose of giving birth here, and will consider their sentences on that basis.

Grounds of Appeal (4) and (5)

44.  These two grounds of appeal can be dealt with together as they are directly related to the length of the sentences.

45.  Miss Chong does not dispute the view that it is an aggravating factor for them to have come to Hong Kong to give birth.  I think she is correct in adopting this stance.

46.  The complaint of Miss Chong is: the magistrate had wrongly adopted the starting point of the type of offences relating to illegal remaining[14], but the present case is not within that type of cases which involve illegal entry.

47.  She submitted that although the cases referred to and relied on by the magistrate all involved mainlanders coming to Hong Kong to give birth, the defendants therein were not charged with the offence of Breach of Conditions of Stay.  Cases likes You Shune, Lee Tak Ying and To Wah Mei all involved the offence of illegal entry.  Furthermore, although the court in those cases increased the sentence on the grounds that the appellants came to Hong Kong to give birth, the sentence was only increased by three months, or approximately 20% over the starting point.

48.  In She Ling Chun’s case, the offence involved was making false representation to an immigration officer[15].  The court also increased the sentence by three months on the ground that the appellant came to Hong Kong to give birth, which is an increase of about 25% over the starting point.

49.  The offence committed by the appellants in the present case is the most minor among the three offences (including the two offences I have just mentioned):

(i) the maximum penalty for the offence of making false representation to an immigration officer is 14 years’ imprisonment;

(ii) for the offence of illegal remaining is three years;

(iii) for the offence in the present case is two years.

50.  Miss Chong submitted that the culpability of the first two offences mentioned above was that they seriously undermined the immigration control of Hong Kong.  Thus the court found that a starting point of 12 to 15 months must be adopted to achieve deterrent effect. Offenders of Breach of Conditions of Stay did not enter Hong Kong illegally, thus did not undermine the immigration control of Hong Kong.

51.  Miss Chong pointed out that by adopting a starting point of 18 months, the magistrate had neglected the fact that the offences involved in the cases she referred to and relied on were different from the offence in the present case.  She had also neglected the fact that the penalties imposed by the court in respect of overstaying cases were much lighter than what had been imposed in the two other types of cases.

52.  The prosecutor Miss Fan, on the other hand, pointed out that although the sentences imposed by the magistrate in the present cases were harsh, it was not manifestly excessive having regard to the aggravating factor of the appellants’ giving birth in Hong Kong.

53.  She asserted that the appellants did come to Hong Kong through legal channels, but if the purpose of their coming to Hong Kong was to give birth here, they had effectively circumvented the relevant system to achieve that purpose. The offence was therefore serious.

54.  In R v So Man King[16], when the Court of Appeal laid down the sentencing guidelines in respect of the two offences of illegal remaining and unlawful use or possession of identity cards, it noted that in passing sentences in respect of that type of cases, the main concern of the court was to deter people contemplating coming to Hong Kong, particularly when Hong Kong was facing a serious problem of illegal labour.

55.  As regards overstaying cases, the length of time overstayed is always a main consideration of the court in sentencing.  The Court of Appeal affirmed this approach in HKSAR v Tiongson Patricia Manalad[17], and noted that whether the appellant had taken up any employment whilst overstaying was also a consideration in sentencing. That case did not involve giving birth in Hong Kong.

56.  Both parties failed to provide any past decisions of appellate courts regarding the sentences imposed in respect of the offence of giving birth whilst overstaying.

57.  People who remain illegally normally do that for the purpose of taking up employment, thus affecting the labour market most directly.  Furthermore, their illegal status in Hong Kong renders them difficult to make a living, that also poses a threat to our law and order.

58.  Some people overstay in Hong Kong for making a living or family reunion, and some do that for giving birth in Hong Kong.

59.  Pregnant women from other places giving birth in Hong Kong had at one stage brought business opportunities to our private medical institutions.  On the other hand, these people place a heavy burden on the whole medical system, and also abuse our medical resources.  However, under the current policies of the government, there is now a change in the circumstances.

60.  The magistrate also pointed out that, although the appellants had not committed the offences of illegal entry or making false representation to an immigration officer, their purpose was to give birth in Hong Kong, so that their children could have the right of abode here.  What they had done was to achieve their purpose through different illegal means, the negative effect it had on Hong Kong was just the same.

61.  In To Wah Mei[18], the appellant was an illegal immigrant who surrendered to the Immigration Department after giving birth in Hong Kong.  She pleaded guilty to the offences of illegal entry and making false representation to an immigration officer, and was sentenced to a total of 18 months’ imprisonment by Deputy High Court Judge (as he then was) Anthony To, who said:

“4. By coming to Hong Kong to give birth, she has not only abused the resources of Hong Kong, but has also deprived Hong Kong residents of the medical services they are entitled to. Furthermore, she obtains the right of abode in Hong Kong for her son through illegal channels, that will affect the waiting time of Chinese nationals who have applied to settle in Hong Kong through legal channels. If, rather than imposing appropriate penalties, the court reduces the sentence, it will definitely encourage other pregnant women in similar situations to take the risk and enter Hong Kong illegally. Instead, having regard to the appellant’s motives in coming to Hong Kong, and the negative effect it has on Hong Kong and the mainland, I find it is appropriate that the starting point of the sentence should be raised to between 24 and 27 months. In the result, I find that the trial magistrate had departed from the guidelines of So Man King and erred in respect of a principle of sentencing, the sentence he imposed was also manifestly inadequate.”

62.  In She Ling Chun[19], Mr Justice Derek Pang said:

“14. Mainland women who are pregnant will not be allowed to enter Hong Kong. It is an important policy involving underlying serious considerations such as societal, economic, educational and medical considerations, with far-reaching influence. The appellant’s offence is serious in that she tried to circumvent (i.e. destroy) the relevant system, for the benefit of her own family. It is an entirely different matter with technical matters like whether she entered Hong Kong illegally, or whether she uttered a forged travel document when making false representation to an immigration officer. By citing cases under different categories, the magistrate seeks to illustrate that giving birth in Hong Kong after illegal entry is an aggravating factor in relation to various different charges. In sentencing, the court cannot merely confine itself to the offence charged.”

He went on to say:

“18. In my judgment, in the absence of any special mitigation, the sentences in the two above-mentioned cases were indeed too light. If the magistrates were influenced by the series of cases cited, in which the defendants did not utter forged travel documents at the same time (it cannot be ascertained as this court has not been provided with the relevant transcripts), then they were unduly restrained for the reasons I have explained above. At the end of the day, an aggravating factor does not merely depend on the means (such as uttering a forged travel document), it can also depend on the purpose (especially when the purpose will constitute a serious breach of an important public policy).”

63.  Although the offences involved in those two cases differ from the offence in the present case, I fully concur with the views of the two judges.  I also find that the considerations mentioned in those cases apply to cases involving overstayers giving birth here.

64.  Nevertheless, I also agree that it is unsafe to adopt directly in the present case sentences imposed in cases involving different offences.  The reasons are given below.

65.  Before the Court of Appeal laid down sentencing guidelines in respect of offences involving illegal remaining, forged identity cards or making false representation, it had made its judgment after taking into account the relevant information supplied by both parties (particularly the prosecution).  The information included the seriousness and rampancy of the relevant types of offences, their effect on the society and the normal sentences imposed at that time.

66.  Furthermore, the considerations underlying the penalties imposed on different offences are different.

67.  After all, the offence in the present case does not involve illegal entry, and its maximum penalty is also lighter.  More importantly, I do not have full and adequate information before me.

68.  In my judgment, it is unsafe to adopt directly in the present case penalties imposed on offences like illegal entry, and I will therefore reconsider what the proper sentence is.

69.  As I have mentioned earlier, the court will normally take into account the length of time overstayed when dealing with overstaying cases.  However, it is not the only consideration, and giving birth in Hong Kong is without doubt an aggravating factor, which Miss Chong does not dispute.

70.  I have also noticed that, due to the various measures currently implemented, the length of time overstayed for the purpose of giving birth in most cases is usually not too long.  Hence, calculating the increase in sentence based on a certain percentage of the sentence cannot adequately reflect factors which the court should be concerned with.

71.  This is an appeal against sentence, not an application by the prosecution for review of the sentence or seeking sentencing guidelines.  The information before me is limited.

72.  However, having regard to the matters the court should be concerned with mentioned earlier, I am of the view that the sentence imposed should have deterrent effect.

73.  Miss Chong submitted that as far as the two appellants were concerned, it was not necessary to impose a deterrent sentence, particularly in D2’s case, as she was a first offender.

74.  If the length of time overstayed is only a couple of months, or at any rate less than one year, the court will impose a sentence of less than three months in cases not involving any special circumstances.  However, for people who overstay to give birth, the court has to impose deterrent penalties, even for a first offender, to protect the overall interest of the society and to prevent any erosion of the population policy.

75.  Apart from taking into account matters to be concerned with mentioned above, I also take into account information provided by both parties concerning the sentences imposed in the last three years.  This information is not comprehensive and only covers cases prosecuted by the Immigration Department and handled by Shatin Court.

76.  The information shows that during the past three years, most of the mainland pregnant women who overstayed to give birth were given suspended sentences.  In 2014, however, the court had tended to impose immediate custodial sentences.  In the cases handled by the magistrate in the present case, a starting point of 18 months was adopted, whereas a starting point of nine months is adopted in the majority of the remaining cases.

77.  Miss Chong submitted that, as D1 was arrested in November 2013 and D2 in December, they should be sentenced in accordance with the sentencing tariffs then applicable.

78.  The present case does not involve the situation where the legislature raises the maximum penalty or the Court of Appeal lays down sentencing guidelines, it therefore does not touch upon the issue of retrospective effect.  I am only deciding whether the sentence imposed by the magistrate is manifestly excessive, and if so, what the proper sentence is.

79.  The trial magistrate sentences a defendant in accordance with the unique circumstances of each case.  If the sentence is a proper one, it is difficult for the defendant to appeal on the grounds that the sentence imposed on him is heavier than other people’s.

80.  The appellate court has to decide whether the sentence is proper under the circumstances of the case in question.

81.  Having regard to the effect this type of cases have on the medical services of Hong Kong, and the possible effect on social policies and facilities in education and housing, I take the view that for this type of cases, even if the length of time overstayed is short, the court should normally adopt a starting point of at least nine months, to adequately reflect the unique seriousness of this particular type of overstaying cases.

82.  If there are other aggravating factors in the case, the sentence should be increased accordingly. If there are mitigating factors, the sentence should also be reduced accordingly.

83.  For instance, it is the second time that D1 commits the same offence.  In November 2004, she was sentenced to one month’s imprisonment, suspended for two years, after giving birth to her elder daughter in Hong Kong.  That kind of sentence was obviously not effective, and the sentence should be increased when she commits the offence again.

84.  Miss Chong submitted that the fact that both appellants had paid their hospital charges was a mitigating factor.  I disagree.  This is only an obligation which the two appellants should discharge; rather, it may be an aggravating factor if they default in their payments.

85.  I will now consider the sentences of the two appellants separately.

86.  Having regard to D1’s background and the fact that it is the second time that she commits this kind of offence, I find that the appropriate starting point is ten and a half months.

87.  Apart from her guilty plea which warrants a one-third discount of the sentence, I do not find any other mitigating factors in the present case.

88.  In the result, I allow D1’s appeal and reduce her sentence to seven months’ imprisonment.

D2

89.  D2 has a clear record.  The overall circumstances in which she committed the offence in the present case are typical of this type of offence.  There are no specific aggravating factors, nor are there any mitigating factors.

90.  Miss Chong urged the court to consider humanitarian factors.  She pointed out that D1 had no relatives in Hong Kong, therefore had to take her newborn baby with her when she served her sentence in prison.  It was hardly an ideal way to take care of the baby.  She had been detained in a cell together with nine prisoners and ten children, and her daughter also suffered from eczema.  Miss Chong asked the court to allow for her situation and reduce her sentence on humanitarian grounds.

91.  The prosecutor Miss Fan, on the other hand, submitted that D2 was the very person who put the baby in this predicament, she could not use it as an excuse to ask for a lesser sentence.

92.  The situation D2 finds herself in is very often the consequence faced by people who have committed this type of offence.  It should not normally be regarded as a mitigating factor.

93.  For the reason given above, I allow D2’s appeal.  I adopt a starting point of nine months and give her a one-third discount of the sentence having regard to her guilty plea.  She is sentence to six months’ imprisonment instead.