R. v. LI SIU HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 169 OF 1996

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J U D G M E N T

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1. The appellant was convicted after her plea of guilty to two offences:

(a) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong; and

(b) Possession of an identity card relating to another person.

2. She was sentenced to 15 months and 9 months imprisonment concurrent respectively. She now appealed against sentence on the ground that there was strong humanitarian considerations for a reduction of the sentence. Leave for her to appeal out of time had been granted by the magistrate.

3. Mr Wilson Chan for the appellant submitted that the sentences were in line with the guidelines in So Man King but there were special circumstances which warranted a departure from them. He put the following background of the appellant for the court's consideration.

4. The appellant was 26 years old and her parents were divorced when she was young. The appellant was the sole bread winner of the family and she had to take up the responsibility of providing for her 2 younger brothers aged 10 and 8 and younger sister aged 6 and a 76 years old grandmother. Her grandmother was to look after the children while the appellant went to work in a garment factory. She came to Hong Kong for financial gains. After her imprisonment, her grandmother became ill. The medical certificate produced from the hospital certified that the grandmother was suffering from Parkinson's disease as well as arteriosclerosis in addition to cervical spondylopathy. A certificate from his home town Xyinyuan Resident's Committee showed that her younger brothers and sister were unable to support themselves.

5. Mr Chan submitted that the appellant was unaware of her grandmother's illness before she came to Hong Kong and the case was entirely different from cases where illegal immigrant chose to leave their sick relatives to come to Hong Kong. The appellant was convicted on 15.8.95 and had served almost the length of her sentences. She would be discharged in the normal course in early June, 1996.

6. Mr Veltro for the Crown pointed out that the medical certificate was dated 22.11.95 and there was no evidence to show the grandmother was still in hospital.

7. Be that as it may, I am prepared to accept the medical certificate as showing the health condition of her grandmother since there is no evidence to the contrary. Having regard to this and the appellant's background, there are strong humanitarian grounds for a departure from the normal sentence of 15 months imprisonment.

8. Taking into consideration that the appellant would be discharged in June, 1996 just under one month from now, the appeal is allowed and the sentence is reduced to a term that would enable her to be discharged immediately and repatriated forthwith to mainland China.