R. v. TANG BO YIN

MAGISTRACY CRIMINAL APPEAL NO. 1556 OF 1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

____________

_________________

J U D G M E N T

_________________

1. On 4th November 1994 at North Kowloon Magistrates' Court, the Appellant pleaded guilty to two charges. The first was using an identity card relating to another person, and the second was remaining in Hong Kong without the lawful authority of the Director of Immigration. She was remanded in custody for a background report on her from the probation service and a medical report. When she returned to court on 18th November, she was sentenced to 15 months' imprisonment on each charge concurrent. She now appeals against her sentences.

2. The Appellant was arrested on 19th October at a restaurant in Mongkok. She admitted having come to Hong Kong from China surreptitiously. However, it was here that the Crown's case and her case diverged. The Crown's case was that she had been in Hong Kong for some time, because the employment records of the restaurant at which she was arrested showed that she had been working there since March 1994, and that she had used the identity card to get the job in the first place. Her case was that she had arrived in Hong Kong only the previous day, that she had found the identity card which she proposed to use to assist her in getting a job, that she was not employed at the restaurant at which she was arrested, but that at the time of her arrest she was at the restaurant waiting to be interviewed for a job. Today, she has told me a different story. She told me that she was only at the restaurant to go to the toilet, and that she had no identity card with her at the time of her arrest.

3. In his Statement of Findings and Reasons for Sentence, the magistrate did not refer to these differences - let alone seek to resolve them. The magistrate must therefore either have regarded those differences as immaterial to sentence, or he must have assumed in the Appellant's favour that the facts were as she claimed. In view of what the restaurant records showed, I do not suppose that the magistrate assumed that the facts were as she claimed. I shall therefore assume that the magistrate regarded the differences as immaterial to sentence, though I think that the magistrate should have spelt that out in his Statement of Findings and Reasons for Sentence rather than leave me to infer it.

4. The reason why the magistrate asked for a medical report on the Appellant before he sentenced her was because the duty lawyer representing her on 4th November had said that she had come to Hong Kong to earn money to pay for treatment for a kidney disease from which she was suffering, and that she also suffered from "rheumatic heart disease". However, the medical report showed that when she was admitted to Tai Lam Centre for Women, no significant illness was noted, and that her general health condition was satisfactory during her stay in the Centre. The report stated that a physical examination of her showed her to be clinically normal, and that laboratory tests revealed no abnormalities . Moreover, when she was interviewed by the probation officer, the initial reason she gave for coming to Hong Kong was not the state of her health, but the need to earn money to pay off debts totalling RMB 5,000.00. The magistrate did not state in his Statement of Findings and Reasons for Sentence what his conclusions on the Appellant's medical condition were. I assume that, as a result of the medical and probation reports, he disbelieved the Appellant's assertions, but the magistrate should, I think, have spelt that out as well rather than leave me to assume it.

5. The Appellant is 48 years old. She is divorced, but she has three daughters, aged 15, 12 and 9, and an elderly mother aged 75. She claims that she is their sole support, and she asks to be repatriated to China so that she can look after them. At one stage, she was saying that she was afraid that her creditors might harm her daughters if her debts remained unpaid, but the magistrate was rightly sceptical of that claim in the light of her statement to the probation officer that her creditors were in fact friends of hers.

6. I sympathise with the Appellant, but I do not think that her circumstances constitute a sufficiently strong humanitarian reason to justify a departure from the guidelines laid down in So Man King [1989] 1 HKLR 142. After all, she chose to come to Hong Kong, leaving her mother and her daughters in China for the 7 months which the magistrate must be taken to have found elapsed between the commencement of her employment at the restaurant in Mongkok and her arrest.

7. For these reasons, this appeal must be dismissed.