HKSAR v. YEUNG CHAU FONG

HCMA100/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 100 OF 1999

(ON APPEAL FROM WSCC 14885 OF 1998)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The appellant was charged that she, being a person permitted to land in Hong Kong by an Immigration Assistant by virtue of s.11 of the Immigration Ordinance, did contravene a condition of stay in force in respect of herself, namely, that her stay in Hong Kong was limited until 8th June 1997, and that she remained in Hong Kong after that date. She was, having pleaded guilty to that charge, fined $2,000 and ordered to be imprisoned for two months, but the imprisonment was ordered to be suspended for a period of three years.

2. The facts were very simple. She was arrested on 22nd November 1998 by the police for overstaying and the matter was then referred to the Immigration Department. Inquiries revealed that she had come to Hong Kong on 28th March 1997 on a permit which allowed her to remain until 8th June. She had, by the time of her arrest, been overstaying in Hong Kong for a period of about one year and five months.

3. In mitigation before the magistrate, the appellant said that she had stayed in Hong Kong to look after her two children and there is no question that this was the case. They are young children of about 3 and 5.

4. The magistrate when sentencing noted that this was her third conviction. He said:

"While I was sympathetic I felt however that I was left with no choice but to impose upon her a sentence which would act as a deterrent to her specifically, against her overstaying in Hong Kong again."

He then imposed the sentence to which we have referred.

5. The appellant appealed against that sentence to a judge of the High Court and Woo J., having heard what she had to say, which was much the same as she had said to the magistrate, i.e. that she wished to remain in Hong Kong to look after her children, directed:

"Bearing in mind the social circumstances that might have changed after the resumption of the exercise of sovereignty by China over Hong Kong, and that there is no tariff or guideline set by any court in respect of offences of a similar nature, I consider this a proper case to me to reserve the appeal to the Court of Appeal pursuant to s.118(1)(d) of the Magistrate's Ordinance."

Thus the matter comes before us today.

6. The appellant has again told of her family difficulties saying that if she is sent to China her husband will either have to apply for full social welfare or to give up his job and that it is clearly not in the interest of the family either that he be not working or that he be working and the children would not be properly cared for. She says that what would be in the best interest of the family would be if she could remain with them.

7. We have to say that, regrettably, we have no more power than had Woo J. to authorize her continued presence in Hong Kong. We have had a helpful written submission from Mr. Bruce, S.C., who appears for the Special Administrative Region, which states, and we accept, that as regards this appellant, the position since 1st July 1997 is no different from the position that obtained before that date. He suggests that the statistics indicate that fines rising for repeated offences to suspended sentences have usually been imposed in cases such as the present one. In his written submission he says finally:

"The added dimension of the instant case (and others like it) is the humanitarian dimension: a parent who has not right to be here, wanting to be with his or her children. Against that it is submitted that Ryan J. (in R. v. Chong Yuk-lun, Magistracy Appeal 129 of 1990) was correct when he noted that if the current system is to work it has to be observed. Against that it is submitted that the law has to be obeyed and it is not open to the courts or to the community to, by sentencing practice, render the provision effectively irrelevant for a class of persons. It is submitted that there are no grounds for interference with this sentence."

8. The plight of the appellant clearly engages our sympathy. We appreciate the distress she must feel at the thought of being separated from her young children but, as we have already indicated, we have no power to make any order that would allow her to remain in Hong Kong.

9. The order of the magistrate was a proper one. It was one which recognizes the law which applies and which must be applied in Hong Kong. The appeal must, therefore, be dismissed.