HKSAR v. CHAN HAU LING

HCMA504/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 504 OF 1999

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J U D G M E N T

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1. In this case, the Appellant was charged with remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. The particulars stated that the Appellant on 19th April 1999, at the casualty section of Kwong Wah Hospital, Yau Ma Tei, Kowloon West, having landed in Hong Kong unlawfully, did remain in Hong Kong without the authority of the Director of Immigration.

3. The Appellant appeared before the learned Magistrate on 23rd April 1999 and pleaded guilty to the charge. She was then represented by the Duty Lawyer.

4. Conducting her own appeal, the Appellant submitted mainly that she came to assist her mother-in-law who was ill, and it was at the request of her husband that she came to Hong Kong. Now she wanted to go back to China because her new born child had an accident in China and that she herself has breast problems.

5. The admitted fact show that the Appellant's illegal status was discovered when she was sent by her husband to Kwong Wah Hospital to deliver the baby. The Appellant got married with her husband, a Hong Kong citizen, on 1st April 1996 in China and later she entered Hong Kong illegally through the arrangement of a snake-head. Then she stayed with her husband until she was sent to the Hospital.

6. The Appellant has two previous convictions. In 1993, she was sentenced to 15 months for a similar offence. In 1998, she was given a suspended sentence for the offence of Breach of Condition of Stay. Hence, this is the third time the Appellant came before the Courts in Hong Kong.

7. In the mitigation, it was pointed out by the Duty Lawyer that the Appellant came to Hong Kong to give birth to her child so that her husband can look after the child and also that her child can have the Hong Kong citizen status. The Court was invited to consider the recent birth to be a humanitarian ground to reduce the sentence. Regarding the suspended sentence, the defence lawyer invited the Court to consider the totality principle.

8. The learned Magistrate imposed a term of 12 months for the present offence and activated the suspended sentence, ordering the two terms to run consecutively. The total sentence was therefore 13 months.

9. Now the Appellant is appealing against that sentence.

10. I have read the relevant transcript and the Reasons for Sentence, the learned Magistrate was right in pointing out that such an offence usually attracts a term of 15 months. It should actually be adjusted upward if the offender had previously come to Hong Kong illegally.

11. I find that the sentence was neither wrong in principle nor manifestly excessive. Although I have sympathy for the Appellant's position, I find no reason to interfere with the sentences.

12. It appeared from the letter submitted by the Appellant that her child is under the care of the Appellant's family and regarding her own illness, she can receive medical attention while serving the sentence in Hong Kong.

13. I shall dismiss her appeal accordingly.