THE QUEEN v. MA SIK YING

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H E A D N O T E

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REMAINING IN HONG KONG AFTER LANDING UNLAWFULLY - SENTENCE REDUCED ON HUMANITARIAN GROUNDS AFTER BIRTH OF CHILD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 383 OF 1988

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J U D G M E N T

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1. The appellant pleaded guilty to remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115. She was sentenced to 12 months imprisonment on 28th April.

2. This was the second time the appellant had entered Hong Kong illegally. She was arrested and removed to China in 1986 without being prosecuted. On this occasion her husband had been removed to China and she wished to join him for the birth of her child. She therefore surrendered herself to the police at Man Kam To checkpoint.

3. The appellant told the magistrate that she was eight months pregnant and asked him to send her back to China. In his Statement of Findings he said he "took into account all relevant factors including her clear record, the fact that she was arrested at the Border when surrendering and. her claim of being eight months pregnant."

4. Mrs Spruce, who appears for the appellant, produced a medical report stating that the baby was born in Queen Elizabeth Hospital on 20th June. The appellant is still in hospital.

5. Counsel submits that the magistrate gave insufficient consideration to the fact that the appellant surrendered herself and had failed to make full enquiries about her pregnancy. She cited R. v. Leung Sau-lan⁽¹⁾, in which Garcia J. ordered the immediate release from prison of a pregnant appellant, in order that she might return to China to have the baby.

6. The usual sentence for this offence is 15 months. See R. v. Chan Wah-ying⁽²⁾.

   I agree with counsel that the mitigating factors in this case deserved greater weight than they received. On humanitarian grounds also I feel I should interfere.

7. The appeal is allowed and the sentence reduced to three months imprisonment.