R. v. LI HANG LUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.346 OF 1995

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J U D G M E N T

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1. The appellant pleaded guilty to aiding and abetting an illegal immigrant to remain unlawfully in Hong Kong. He was sentenced to 12 months' imprisonment.

2. The facts appeared to be this. The police found a woman outside the appellant's home. Upon enquiry, they found her to be an illegal immigrant and she admitted she had stayed in the appellant's home for, I gather, only about three days.

3. The appellant admitted to the offence and said that the woman was his fiancee's mother. I also note that because the appellant had pleaded guilty to the charge, the Crown offered no evidence against his father who was then acquitted on this charge.

4. The learned magistrate in his Reasons for Sentence mentioned that he was told that the appellant wanted to help his fiancee's mother but said that there was no particularly good reason for "doing so" and that this case was not one of those exceptional cases although he had given some allowance to the appellant.

5. There is no evidence that the woman was not the mother of the appellant's fiancee. There is no evidence that she came to Hong Kong under a previous arrangement. There is also no evidence that the appellant had harboured this woman for the purpose of monetary gain. It was said that he was about to marry the woman's daughter. In my view, I would respectfully disagree with the learned magistrate when he said that there was no particular reason to harbour one's fiancee's mother. If the appellant had not helped his fiancee's mother, I am sure that this would likely have affected his relationship with his fiancee.

6. I am not suggesting at any moment that the learned magistrate was not legally correct. The woman was obviously not a relative of the appellant yet. However, there is in fact a very strong reason, in my view, for the appellant to help the future mother-in-law who had been, in effect, thrusted upon him.

7. I have been referred to a number of authorities. They generally say that in the case of a defendant harbouring a relative, then the court should take this as an humanitarian reason and a very strong mitigation. The courts have consistently given great allowance in such situations. The usual sentence in such circumstances ranged from a fine to a suspended sentence for a few months.

8. In the circumstances, I am informed that the appellant had been in custody for about three to four months. I think he had been sufficiently punished for something which might not be within his control in the first place. I would also bear in mind that he had only housed the woman for about three days. In all the circumstances, I would think that he deserves some sympathy. So I would allow the appeal and reduce his sentence to enable his immediate release.