R. v. LI AH LUK

MAGISTRACY APPEAL NO. 1267 OF 1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

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J U D G M E N T

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1. On the 9th June 1994, the appellant pleaded guilty to a charge of possession of a forged identity card and to a charge of remaining unlawfully in Hong Kong.

2. In respect of the first charge, he was sentenced to 18 months' imprisonment and on the second charge 15 months' imprisonment, the sentences to be served concurrently.

3. The evidence was that the appellant had produced the identity card to a police officer and the magistrate considered that to be an aggravating feature and accordingly added 3 months' imprisonment to the tariff sentence of 15 months' imprisonment.

4. The appellant has appealed against the sentences. The first ground of appeal is that the magistrate was wrong to consider the production of the identity card to the police officer as an aggravating factor. The Crown concedes this point and accordingly the appeal in respect of the sentence on Charge A is allowed and the sentence reduced to 15 months to be served concurrently with the sentence on Charge B.

5. There is, however, a further ground of appeal based on humanitarian grounds. Mr Wong who appears for the appellant has asked to introduce into evidence some correspondence from China which shows that the appellant's mother is suffering from cancer, that the fields had been flooded, that the family are in poor circumstances. There is a letter from the wife saying she has left the appellant and his two young daughters.

6. Miss Hartstein, for the Crown, quite properly has said that they have not been able to confirm or otherwise whether the documents are authentic. But I propose for the purposes of the appeal to admit them.

7. The only matter that really concerns me comes from the correspondence that the daughters aged 2 and 1 no longer have the support of their mother and it would seem to me to be a humanitarian gesture to allow the appellant to return to look after his family. With some reluctance, I will allow the appeal and reduce the terms of imprisonment in respect to both charges to a time which will allow the appellant to be immediately released and repatriated to China.