THE QUEEN v. CHAN CHOW LUNG

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 393/90

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BETWEEN

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JUDGMENT

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Hon. Sir Derek Cons, Ag. C. J. :

1. This is an appeal against the imposition by a magistrate, Mr. Davies, of 18 months' imprisonment on a charge of remaining in Hong Kong after having landed unlawfully. A second charge of using an identity card belonging to another person was not proceeded with.

2. The defendant was arrested as he was in the street and produced a card which did not belong to him. In mitigation he explained to the magistrate that although he knew from having been here before that he was likely to be imprisoned should he come again, he was induced to do so because his wife ran off with another man to Hong Kong and left him with a child to look after there. He said that he had only been here two days before his arrest.

3. In the circumstances, the sentence imposed by the magistrate was quite correct. Since then, however, the defendant has received correspondence from China which indicates that his son has been sick and that a friend who looks after his son for him is having difficulties continuing to do so with his own three children.

4. Mr. Lee, for the Crown, quite correctly points out that this is a matter which could be taken into account by the Executive as it is something that has happened since the conviction, but it is not unusual for the Court of Appeal to take account of what has occurred between the time of the conviction and the appeal and I think it proper in these special circumstances to allow the appeal and reduce the sentence to 12 months.