R. v. LI WING KUEN

IN THE COURT OF APPEAL

Magistracy Appeal No. 1584 of 1994

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J U D G M E N T

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Bokhary, J.A.:

1. On September 17, 1994, the appellant, a woman in her early 30's, who had pleaded guilty to remaining in Hong Kong without authority having landed unlawfully, was sentenced by P.J. Line Esq. at the Magistrate's Court in Tsuen Wan to 15 months' imprisonment.

2. Having obtained an extension of time for the purpose of doing so from the Magistrate, she now appeals against sentence to this Court.

3. Her grounds of appeal, which had been used for the purpose of seeking such extension and are now used for the purpose of the appeal itself, read as follows:-

"My husband is in hospital, seriously ill. The children are too small. The great grand-parents are aged. My father-in-law has passed away after an illness. My mother-in-law has rheumatism. As there is no one to look after the family, I apply to appeal out of time. It is hoped the judge will come up with leniency."

4. I find myself able to extend to the applicant the leniency for which she asks.

5. The courts' task in these cases is always a difficult one. We have to balance many interests and considerations. It is very easy to put humanitarian considerations on paper. The courts have to look at these things in such a way as to avoid gullibility on the one hand and cynicism on the other hand. We have to use our experience and sometimes, it must be faced, we have to rely to some extent on our instincts.

6. Looking at this obviously simple woman - who is even now weeping in the dock as only either a genuinely distressed person would or an actress of exceptional ability could - and considering the way she has spoken to me about her situation, I am convinced that she is sincere and that her hardship is indeed exceptional. I allow her appeal to such an extent that her sentence will expire today. She wishes to be sent back to her family in China. I think that that is the best course.