HONG KONG SPECIAL ADMINISTRATIVE REGION v. CHAU Ping-ping

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 571 OF 1997

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R E A S O N S  F O R  D E C I S I O N

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1. The Appellant in this case pleaded guilty to one count of remaining in Hong Kong without authority. She was sentenced in May of this year to a term of 15 months' imprisonment. The point which calls for consideration in this appeal is that at the time when she was sentenced she was pregnant. The learned Magistrate in the court below called for a medical report on her condition of pregnancy and according to the report, the expected date of delivery is to be around October of this year.

2. The learned Magistrate was fully aware of the authorities when he passed the sentence as he did of 15 months. If the Appellant is to serve the full term of 15 months she will give birth to her child in prison. It has been urged by counsel for the Appellant that the court should exercise some form of clemency in this particular case. Miss LAM relied on the decision of Yeung J in the case of MA No. 236/97, the Queen v MO Hoi-ying. In that case, the Appellant's term of nine months was reduced to one of four months. The Appellant in that case was also a pregnant lady.

3. What the learned Magistrate did in assessing the appropriate term cannot be criticised. However, the point I need to consider is whether I would suffer a child to be born in prison, and I take the view that some form of clemency ought to be exercised in this case and this is directed at the unborn child rather than at the mother. The sentence of 15 months is set aside and one of four months is substituted.