R. v. LEE WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 486 OF 1994

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J U D G M E N T

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1. On 7th January 1994 at Eastern Magistrates' Court, the Appellant pleaded guilty to two charges. The first was using a forged identity card, and the second was remaining in Hong Kong without the lawful authority of the Director of Immigration. She was sentenced to 15 months' imprisonment on each charge concurrent. She now appeals against those sentences, the magistrate having extended her time for doing so.

2. The brief facts, which the Appellant admitted, showed that the Appellant came to Hong Kong in November 1993 from China. She was then 21 years old. She had obtained the forged identity card in China before she left. Two months after her arrival in Hong Kong, she used the identity card to get a job as a waitress. She was arrested the following night. Her mitigation was that she had come to Hong Kong to find the man who had defrauded her of $90,000. However, in view of the time she had been in Hong Kong, the magistrate - in my view, rightly - did not regard the reason why she had come to Hong Kong in the first place (assuming it to be true, though the magistrate was properly sceptical about that) as justifying a departure from the guidelines in So Man-king [1989] 1 H.K.L.R. 142. On the material before the magistrate, therefore, the sentences he imposed cannot be faulted.

3. However, the Appellant claims that things have changed since her sentence. Her mother died when the Appellant had only served five weeks of her sentence. That is confirmed by the medical records of the hospital at which she died and the death certificate. And the fact that the Appellant is the daughter of the woman to whom the medical records and the death certificate relate is confirmed by a Family Particulars Certificate. The Appellant pleads for her release and repatriation to China on compassionate grounds to look after her elderly grandmother, because with her mother's death there is no one to look after her.

4. The magistrate, when extending time for appealing, was sceptical about the truth of this claim. However, he had only seen the proposed grounds of appeal against sentence and not the various certificates which have been placed before me. He noted that the death of the Appellant's mother had not been mentioned to him when he had been asked to supply a typed transcript of his record for the purposes of a possible application for a review, but it may be that by that date (31st March) the news about the death of the Appellant's mother had not then reached the Appellant. I have no reason to doubt the truth of what the Appellant tells me today.

5. In Liu Chi-ping (AR 1/90), the Court of Appeal took the view that humanitarian considerations could not be found in cases where a relative of the illegal immigrant, even a close relative, had already fallen ill by the time the illegal immigrant came to Hong Kong. However, in many cases since then, it has been observed that the position may be different where some unexpected disaster, such as the severe illness of a close relative of the immigrant, occurs after the immigrant has arrived in Hong Kong. In such cases, a shorter sentence, or even a suspended term, may be appropriate.

6. In my judgment, the new facts upon which the Appellant relies do amount to a sufficiently strong humanitarian reason to permit me to depart from the guidelines. Having regard to the time that the Appellant has served - a time in excess of 6 months - the appropriate course for me to take is to allow this appeal by reducing her sentence to one which permits her immediate release and her repatriation to China.