R. v. LAU LAI

1997, No. MA 3

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The Appellant pleaded guilty to two offences : A. Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. B. Possession of a false travel document.

2. She was sentenced to 12 months imprisonment concurrent. She now applies for extension of time to appeal against sentence and also appeals against sentence.

3. The Appellant came to Hong Kong on 4th November 1996 after she purchased a false Chinese permit and she admitted that she came to Hong Kong to find work. In her plea in mitigation before the magistrate, it was submitted that her father had suffered a stroke in September 96 and he also had high blood pressure. There was no one at home to take care of her parents. She was 22 when she committed these offences.

4. The magistrate departed from the guidelines in R. v. So Man King [1989] HKLR 142 and imposed the concurrent sentences of 12 months in view of her relative youth and as an act of mercy.

5. Mr Wong for the Appellant submits that the Appellant is at present pregnant and according to the medical report of the doctor in the C.S.D. the expected date of birth of her baby is 12th June 1997. She was found to be pregnant by the doctor when she complained of discomfort after she was admitted to the Tai Lam Female Prison. There is no evidence to show that she knew she was pregnant before coming to Hong Kong illegally. She was also not aware of this when she appeared before the magistrate. The magistrate in his reasons for sentence also stated that he did not know of the Appellant's pregnancy.

6. Mr Wong makes it clear that he is not complaining about the length of the sentence. The ground of appeal is that because of the pregnancy of the Appellant, the court should as an act of mercy reduce the sentence of 12 months imprisonment.

7. He refers to R.v. Lee Yuk Ying and others MA 786/92. There three women illegal immigrants were sentenced along the guidelines of R.v. So Man King to 15 months imprisonment each. However, at the time of sentence, the magistrate there was not aware that each of them was pregnant. On the question how the court should sentence these pregnant illegal immigrants, Litton J.A. sitting as an additional Judge of the High Court said this :

"The position as it stands today is this. If their applications for leave to appeal out of time were dismissed then the babies they are now carrying will be born in prison. The applicants will give birth without the comfort and support of their family members. This is a very considerable personal hardship, both on themselves and on their unborn babies. This is something the magistrate plainly had not foreseen and could not have foreseen ..."

8. Mr Wong has urged me to consider that the position of the Appellant is not unlike those in the case cited and that if the Appellant is to serve the balance of her sentence, she is likely to give birth to her child whilst in prison and she would not have the necessary care and comfort from family members.

9. The Appellant came to Hong Kong on a false travel document to find work. The sentence of 12 months imprisonment concurrent on the two offences is an appropriate sentence. However, after she was imprisoned, she became aware of her pregnancy. This is the first time the appellant will be a mother. The expected date of birth of her child is 12th June 1997. If she remains in prison, her child will be born in prison. The expected date of birth being 12th June 1997, the Appellant must be in an advanced stage of pregnancy. I agree with Litton J.A. that a woman giving birth for the first time needs the support and comfort of her family members. If she is to give birth in prison, she will be in considerable hardship in the absence of such support and comfort which medical treatment can be no substitute. This is a case where exceptional circumstances justify a departure from the guidelines on humanitarian grounds.

10. The Appellant was sentenced on 8th November 1996 and she has now served 4 1/2 months in prison which, taking into consideration remissions, is equivalent to more than half of the sentence of 12 months. This would constitute sufficient deterrence to her and would prevent her from coming to Hong Kong again via illegal means.

11. In the circumstances, I allowed the extension of time to appeal and the appeal against sentence. The sentence of 12 months is reduced to one which will enable the Appellant to be released immediately and repatriated forthwith to China.