R. v. CHAN SHUK YEE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.238 OF 1995

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J U D G M E N T

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1. The appellant pleaded guilty to three counts, namely, possession of an identity card which relates to another person, using an identity card which relates to another person and remaining unlawfully in Hong Kong. She was sentenced to 12 months imprisonment in respect of all these three counts and the sentences were to run concurrently. She now appeals against sentence on humanitarian grounds.

2. It appears that upon a licence check the police found the appellant working in a nightclub. What happened was she used an identity card of another person to get employment in the nightclub. She had sneaked into Hong Kong since August 1994.

3. She has now put before me further matters which apparently were not before the learned magistrate. She said that she has a six year old illegitimate daughter by a Hong Kong resident who had abandoned her six months after the birth of the daughter. The young girl was used to be looked after by her own parents. She came to Hong Kong to locate the Hong Kong resident, who was the father of the girl. She said that her mother had died on 29th January 1995. A death certificate was produced before me. She further said that there was only her father, the grandfather of the young girl, to look after the girl. He was now 70 years of age and retired and suffering from hypertension and other health problems. It was urged upon me that there are humanitarian reasons for reducing her sentences.

4. I must say that this is one of the usual cases where illegal immigrants come to Hong Kong to earn money and for economic reasons. I do not believe, as Mr Pang for the Crown suggested, that she really was serious to come to Hong Kong to look for the father of the girl after 5½ years. I am sure she was aware when she came to Hong Kong of the conditions of her mother and possibly also the conditions of her father. So strictly speaking, on the facts put before me, I do not find there to be any humanitarian reasons. However, I do think that circumstances might have changed a little because there used to be two persons, although both elderly, looking after the young daughter of six years of age, there appears to be now only one person who was said to be suffering from some health problems.

5. Having considered all the circumstances, I would reluctantly reduce the sentence by three months so that she could return early to China to look after her young girl and her father. I hasten to add that I do so with respect to the learned magistrate who had passed, in my view, the correct sentence. The appeal is allowed and the sentences on each count be reduced to 12 months, all to run concurrently.