HKSAR v. YIP LAI CHING

HCMA959/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.959 OF 1998

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J U D G M E N T

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1. This is an appeal against sentence.

2. The appellant is a lady who came unlawfully to Hong Kong in May 1997 from the Mainland. She has three children, aged eight, five and four. Her husband lives here. She came here in 1997 in order, not surprisingly, to be with her children. She tells me that there is nobody to look after her children other than herself, for her husband works long hours. It is obvious that whatever I do in relation to sentence, this lady is going to be returned to the Mainland and I ask the prosecuting authorities to get in touch with the Social Welfare Department to go and see these children and make sure that they are well cared for.

3. The appellant went into a shop in September 1998 and she stole some toys. She was apparently with her children and she tells me that she was bereft of funds and succumbed to the temptation of stealing some toys.

4. In relation to the theft offence, the magistrate imposed a sentence of three months' imprisonment, and in relation to the immigration offence, he imposed a sentence of 15 months' imprisonment. He ordered the sentences to run concurrently.

5. The magistrate cannot be criticized for the sentences which he imposed and nothing that I say or do today should be taken as suggesting that the sentences imposed were other than appropriate.

6. The appellant tells me, however, that she has aged parents at home and that in consequence of her incarceration behind bars, her elderly mother has been hospitalized and there is nobody to look after her.

7. I am not in a position to say that what she tells me is untrue, and in all the circumstances and as a step of exceptional leniency, I shall allow this appeal. I shall substitute a term which will enable her discharge from prison today. That means that presumably the immigration authorities will do whatever is necessary to have her return without further imprisonment for these charges.