R. v. YIP YIN LAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1021 OF 1996

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J U D G M E N T

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1. On 24th May 1996 at Tuen Mun Magistrates' Court, the Appellant pleaded guilty to two charges. The first was possession of a forged Hong Kong identity card, and the second was remaining in Hong Kong without the authority of the Director of Immigration. She was sentenced to 15 months' imprisonment concurrent on both charges. She now appeals against her sentences, leave to do so out of time having been granted by the magistrate.

2. The facts of the case were unexceptional. The Appellant comes from China. She arrived in Hong Kong surreptitiously to take up employment so as to remit her earnings back home. She obtained the forged identity card before coming to Hong Kong for that purpose. However, what neither the Appellant nor the magistrate knew when she was sentenced was that she had very recently become pregnant. By the time the Appellant discovered that, it was too late for her to apply to the magistrate for a review, and she was left with no option but to appeal.

3. In his Reasons for Sentence, the magistrate stated that if he had known of her pregnancy, he "would have passed a much shorter sentence and/or suspended the term". I should give effect to what the magistrate would have done had he known the true circumstances. The Appellant has now been in custody for 5 months, and has therefore served the equivalent of a term of 7½ months' imprisonment. In my view, justice will be done if I reduce her sentence on each charge to ones of such length as allow for her immediate release and her repatriation to China. Accordingly, this appeal is allowed to that extent.