HKSAR v. CHEN JUAN

HCMA 223/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 223 OF 2007

(ON APPEAL FROM KTCC 679/2007)

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J U D G M E N T

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1.  The Appellant pleaded guilty and was convicted in the Magistracy of one charge, in that having landed in Hong Kong unlawfully she remained in Hong Kong, without the authority of the Director of Immigration, such offence being contrary to section 38(1)(b) of the Immigration Ordinance.  The Appellant was sentenced to imprisonment for 15 months and now appeals against that sentence on the grounds that it was too severe.

2.  The facts admitted by the Appellant showed that she arrived in Hong Kong by boat on 27 January 2007 and was arrested later on the same day.  She was seven months pregnant and had two previous convictions, in 2004 and 2006, for breaches of condition of stay.  The Magistrate was told the Appellant’s husband was a Hong Kong resident and she had a two-year-old child who was being looked after by her parents in China.  Today, the Appellant told the court that her husband was not a legal husband; she described him as her boy friend，who is in jail in Mainland China for drug offences.

3.  The Magistrate was not told why the Appellant could not apply for a travel document which would have enabled her to enter Hong Kong legally, but he surmised that such an omission may have been linked to her previous offences.

4.  The Appellant’s counsel told the Magistrate that she had come to Hong Kong so her child could be born here.  There was no other mitigation.

5.  The Magistrate did not consider the pregnancy, or the Appellant’s wish to have her child born here were sufficiently exceptional circumstances to justify his departing from the usual 15 months’ sentence.

6.  I note that the courts treated the Appellant leniently in respect of her two earlier breaches.  She could not have been in any doubt as to her position.

7.  On appeal, the Appellant told the court that she did not say that the sentence was wrong, but she asked for a reduction as she has 5 children.  She wants to care for her daughter, age 2 or 3, herself.  Unfortunately, there is no merit in any of the matters put before me by the Appellant. 

8.  The Magistrate’s sentence is not excessive or wrong in principle.  There is no merit in this appeal which is dismissed.