HKSAR v. HAK LIN KAI SAN

HCMA848/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 848 OF 1998

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J U D G M E N T

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1. The Appellant pleaded guilty to the charge of using an unlawfully obtained travel document for the purpose of Part II of the Immigration Ordinance on 29th July 1998 before Mr D. Duggan at San Po Kong Magistracy and was sentenced to six months' imprisonment.

2. The particulars of the charge are that on 27th July 1998, he had used an unlawfully obtained travel document, namely, a Philippine passport to enter Hong Kong. He had been stopped at the Lo Wu Terminal by an immigration officer. During inquiries by the immigration authorities the Appellant admitted to them that in June 1998 he had obtained the passport through the services of a middleman in Thailand. The photograph on the passport is his, but the date of birth, the name and the other particulars did not relate to him. From Thailand he returned to China, using that forged Philippine passport. Apparently the second time he used that passport was on 27th July 1998 to come to Hong Kong when he was stopped and arrested.

3. I am told by Mr Lok, appearing for the Appellant, that the reason why the Appellant came to Hong Kong was to try and raise funds for a medical operation for his son who is suffering from leukaemia and who is presently in hospital in China.

4. When the Appellant pleaded guilty before the learned Magistrate, in mitigation on his behalf, it was mentioned to the learned Magistrate that the Appellant's son was a leukaemia patient, and it was also mentioned that the reason why the Appellant came to Hong Kong was to obtain $500,000 in order for the operation for the change of bone marrow to be done on the Appellant's son. It was also mentioned to the learned Magistrate that the Appellant came to Hong Kong in order to borrow money from his friend.

5. In sentencing the Appellant, the Magistrate did not mention in Court the fact that the Appellant's son was suffering from leukaemia. In his Reasons for Sentence the learned Magistrate referred to the Appellant's clear record in Hong Kong but did not refer to the medical condition of the Appellant's son.

6. I assume, however, that because the matter was still very fresh in his mind, he would have had the medical condition of the Appellant's son very much in mind when assessing sentence. However, the learned Magistrate was not made aware of the present condition of the Appellant's son. The present condition of the son as on 6th May 1998 is critical.

7. I have had produced before me a certificate from Doctor Wong Chi Kap of the 4th Hospital in Baotau in China. The certificate mentioned that if the patient, i.e. the Appellant's son, did not receive a bone mellow operation, his condition would deteriorate. It also mentioned that in early June a bone marrow donor had been found who would be prepared to donate his bone marrow for this particular patient. However, the operation has not been performed because the expenses for the operation and the expenses of obtaining the bone marrow from this donor have not been paid. In the certificate by Doctor Wong which is dated 21st August 1998, Doctor Wong says that the condition of the patient is really critical and his life is in danger. This certificate appears, on the face of it, to be an authentic document because it bears the chop of the Baotau City 4th Hospital and also the name chop of Doctor Wong. I am told by Counsel that this certificate was served on the prosecution on 4th September as soon as it was received from China. However, Miss Ho, appearing for the prosecution, informed me that the prosecution had not had sufficient time to check the authenticity of this certificate because these inquiries had to be made through Interpol, and so is a time-consuming process.

8. That may be the practice and I do not say that it is not the correct practice, but in this particular case, because Doctor Wong had provided both his home and his office telephone number, I requested Miss Ho to try and make arrangement for Doctor Wong to be contacted so that the prosecution could be satisfied that the certificate was authentic. However, I am informed that the Immigration Department would not place this call to China because it is against the established practice of making all such inquiries through Interpol. Again I make no criticism of the Immigration Department's reluctance to place the telephone call, but because of what has happened, I am prepared to accept that this certificate is authentic.

9. The cases quoted to me by Mr Lok establish quite clearly that, on humanitarian grounds, the Court can intervene to reduce a sentence to enable an appellant to be released immediately to attend to the medical problem of a member of his immediate family. I have also had produced before me an affidavit by one Mr Shum Siu Pan who is a Hong Kong resident. Mr Shum has exhibited his saving accounts passbook to show that he has $1,000,000 in that account. He also said that he would be prepared to lend to the Appellant $500,000 so that the Appellant can arrange for his son to have the operation for his leukaemia. I am told that as soon as the Appellant is released, that is what he hopes to be able to do, namely, obtain this loan from Mr Shum and immediately return to China and try to save his son's life. Because of the urgency of this operation for the son which hopefully might save his life, I am prepared to allow the Appellant to be released immediately so that he can return to China with the necessary finances to assist the son.

10. The Appellant has served almost two months' of his six months term, and with remission for good conduct he would only have had to serve another two months. So the appeal is allowed to the extent that the sentence is reduced which would enable the Appellant to be released immediately.