HKSAR v. LAM MUNG KON

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1129 OF 1998

(On Appeal from TWCC 2811 of 1998)

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J U D G M E N T

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1. The Appellant pleaded guilty to two charges. The first charge was using an identity card relating to another person, the second breach of condition of stay.

2. From the facts admitted, it is apparent the Appellant came to Hong Kong on the strength of a two-way permit which entitled the Appellant to remain in Hong Kong between 30th December 1997 to 25th January 1998. He had made use of another person's identity card in obtaining employment as a warehouse keeper in the godown of Pak N' Shop Supermarket.

3. The Appellant came to Hong Kong from Fujian on 30th December. The primary reason why he came here was to earn money to support his parents. His father, according to the Appellant, by the time he came to Hong Kong, had already suffered from liver disease for two years. It is apparent that his motive was to come to Hong Kong to make money and to look after the parents.

4. In the course of the mitigation plea, it was made known to the learned magistrate that his father had liver disease and the learned magistrate had very magnanimously reduced the sentence of 15 months to one of 12 months. Making it very clear that the reduction was made in view of the Appellant's clear record, remorse and the father's illness in China. The learned magistrate cannot be criticized at all for the term of imprisonment he had ordered. It was an extremely lenient sentence and he had not ignored the humanitarian consideration in the illness of the Appellant's father.

5. The Appellant perhaps was not aware of the fact that the condition of the father's illness deteriorated which perhaps was not surprising because from what told me his parents were illiterate. And it seems from documents produced to me this afternoon, a communication between the mother and the Appellant was conducted via the conduit of the elder sister. The learned magistrate therefore did not have the benefit of the documents that I have now. I have before me a patient's card that purports to come from the Liang On City, Liang Chau Hospital. The card shows that Mr. Lam Cheong Wang, the father of the Appellant had received the treatment from this hospital since 4th June 1996. Now that seems to support the representation made by the Appellant before the learned magistrate, namely that his father has been suffering from liver disease since two years ago.

6. The card also sets out a chronology of examinations conducted by the hospital on the father. There was at least one in May 1997, another time in October 1997 and in an entry dated 15th September 1998, the condition of the father was described as, and this is a rough translation, the final stage of liver cancer. The entry also sets out the medication that was prescribed. Morphine was amongst some of the medications so prescribed.

7. I have no reason to doubt the integrity of this document. This is not a criminal trial embarking upon a process to find guilt. This is a process where the rules of evidence can be relaxed and are relaxed. I am also given a letter. The letter came from the elder sister setting out the condition of the father. Whilst appreciating the Appellant came to Hong Kong in the full knowledge that the father was ill, I cannot ignore the humanitarian consideration as evidenced by the hospital document and as evidenced by this letter.

8. Of course, in Hong Kong Courts do have a discretion to reduce sentences on exercise of mercy provided sufficient humanitarian grounds have been made out. I am persuaded in these circumstances I can exercise that discretion. I am so persuaded not because of a bare assertion made by the Appellant, I am persuaded because of the documents, the integrity of which I have no doubt. So purely an act of mercy and without in any way criticizing the learned magistrate, and I repeat what I have said earlier on that the magistrate had been extremely kind in passing the sentence of 12 months. Confining my decision purely to the facts of this case, I reduce the overall sentence of 12 months to one of 3 months. The sentence of the first charge is reduced to 3 months. The sentence of the second charge shall remain as 2 months. Both sentences to run concurrently.