THE QUEEN v. PANG SUI NA

IN THE SUPREOE COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL No. 624 OF 1989

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BETWEEN

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J U D G M E N T

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1. The Appellant pleaded guilty to a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully. She was sentenced to imprisonment for 15 months on the 2nd of February this year. It is agreed by both counsel that, the sentence imposed by the learned magistrate is the usual sentence imposed for the commission, of this offence.

2. The guidelines supplied by the Court of Appeal in respect of these cases is to the effect that, that is the normal sentence unless there are strong humanitarian reasons for departing from it.

3. In this case Mr. Crawford, on behalf of the Appellant she was unrepresented in the Magistrates Court-submits that there are strong compassionate grounds for a departure from the norm in this case The Appellant's husband lives and works here and is obviously entitled to reside here. They have three children, one born on the 8th of February 1986, another born on the 20th of December 1986, and the third born on the 2nd of July 1988. She came to Hong Kong in July 1985. In October 1988 when the eldest child was approaching the age of 3 years, she was anxious to have that child go to school here and for that purpose sought to have the birth registered. That fact explains an oddity which appears on the birth certificates. Each certificate shows that each birth was registered on the 20th of October, 1988 and that the place next of birth was an address in Taipo.

4. Mr. Crawford says that his instructions are that each child was delivered by the Appellant's husband. In any event the "Brief Facts" state that on registering the births the Appellant "surrendered herself to the authorities".

5. Although the births were registered she was repatriated to China because she had no right of residence.

6. Having been repatriated on the day after the registration of the births, namely on the 21st of October 1988, she was discovered back here on the 15th of January 1989 in a group of persons, who suddenly dispersed on seeing some police officers approaching. She was caught, brought to Court, convicted and sentenced. She undertakes, if released, to return to China with the three children.

7. On any view, this is a tragic case.  The temptation for the Appellant to return again as long as her husband is living and working here must be very strong indeed even if she takes the children back with her as she promises to do.  It seems to me, however, that I should give her the opportunity to come here lawfully.  I see strong humanitarian grounds for not applying the normal sentence in this case.  Mr. Crawford says that having been imprisoned, she has undergone a bitter experience and I am sure that that is so and I am sure that that may act as a spur for her to explore all means of coming here lawfully.

8. I propose therefore to allow her appeal so that she can go back to China, take the children with her and then take proper steps to rejoin her husband by lawful means. I therefore allow the appeal, quash the sentence and substitute therefore such sentence as will enable her immediate release.