HKSAR v. WU FEI WAN

1997, NO. MA 985

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted by her own plea of two offences, one relating to using an unlawfully obtained passport and another making a false representation to an immigration assistant. She was sentenced to 12 months imprisonment on each convictions.

2. The appellant came to Hong Kong together with others in a tour group to take a connecting flight to Malaysia. She used a passport to gain entry to Hong Kong knowing the particulars in the passport do not belong to her.

3. When she was serving her sentence, she discovered that she was pregnant. She applied to the magistrate for leave to appeal against sentence out of time. Leave was granted by the magistrate. She now appeals against sentence before me.

4. The magistrate in his reasons for sentence said this :

" When D13 (the appellant) applied before me for leave to appeal against her sentences out of time she claimed that she was pregnant which was confirmed by a medical report I obtained (marked for the purposes of the appeal as A1). Her expected date of delivery is 31^st January 1998. D13 had not advised me of this prior to my sentencing but if I had known I would have considered reducing the twelve month prison terms imposed to allow her to return to Mainland China to give birth to her baby as she now wishes. Two concurrent terms of 6 months imprisonment would have achieved this provided that she earned remission for her good behaviour in prison."

5. Miss Li for the appellant submits that the sentence of 12 months imprisonment on each count concurrent is appropriate. However, in view of the present predicament of the appellant, her sentence should be reduced. The appellant, it is submitted, has been under strain since she was imprisoned. The baby is her first born and under the term she has to serve, the baby will be born in prison environment and this is particularly distressing to the new mother. Miss Li refers to R. v. Lee Yuk Ling & Others (Mag. App. No.786 of 1992) where Litton, JA considered giving birth to a baby in prison without the comfort and support of their family members is a considerable personal hardship both on the mother and the unborn baby.

6. Mr Zervos for the Government accepts that there are special circumstances in the present case which deserves exercise of clemency by the court.

7. Having regard to the appellant only came to know that she was pregnant one month after she was in custody and that the baby would be born in prison environments if the appellant has to serve out her term of 12 months and this will be the appellant's first childbirth experience, this is an appropriate case for this court to exercise clemency to allow the appeal against sentence. The appellant has been in custody since 25^th August 1997. By now she has served two and a half months of her sentence. This would be sufficient to deter the appellant from returning unlawfully to Hong Kong.

8. The appeal against sentence is allowed. The concurrent sentences of 12 months imprisonment are set aside and substituted by such terms as would enable the appellant to be released immediately and repatriated to Mainland China forthwith.