HKSAR v. LI HUNG LIN

HCMA1159/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1159 OF 1999

(ON APPEAL FROM WSCC 14353 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on 9 November 1999 of breach of condition of stay. She had, at that time, previously been convicted of the same offence and was still at the time of this sentencing, subject to a suspended sentence of one month's imprisonment.

2. The appellant applied to the magistrate for a review which was heard on 15 November 1999, and the magistrate declined to review his sentence.

3. The facts were, in this matter, that the appellant arrived in Hong Kong on 1 April 1999 and was permitted to remain as a visitor until 1 July 1999. She overstayed and surrendered herself to the Immigration Department on 8 September 1999. She was then less than a month from the due date of her pregnancy, and she was given the right to remain here and had her child in Hong Kong born on 4 October 1999.

4. The magistrate considered all of her background, including the facts that the appellant has a husband in Hong Kong who lives with his mother. The mother would be the only person available to look after the child of this marriage which is now seven months of age. The mother-in-law is a lady of 70 years who suffered from diabetics and high blood pressure.

5. Mr Stirling very properly concedes that the sentence cannot be said to be wrong in principle, and with that I agree. He also concedes very properly that it is not manifestly excessive. Again, I must agree. What he urges upon me is that in the circumstances of this particular appellant, I ought to consider that upon humanitarian grounds of the circumstances of this young mother and her seven-month-old baby, that both the imposition of a sentence of one month's imprisonment and the activation of the sentence of one month's imprisonment to be served concurrently are matters which should be set aside by virtue of that humanitarian argument.

6. To deal first with the suspended sentence, the magistrate is enjoined by section 109 of Criminal Procedure Ordinance to activate a suspended sentence unless there are good and judicial reasons for not doing so. In this case, he fully considered the activation of that sentence and exercised his discretion to activate this. I cannot say, in any measure, that he was wrong to do so. He made that sentence concurrent to the sentence he was presently imposing, that if anything was a concession greater than might have been expected in the circumstances.

7. Having considered the whole of the matter, I cannot say that he was wrong to do so even bearing in mind the humanitarian considerations of the young child and his mother.

8. Similarly, a sentence of one month's imprisonment cannot be said to be wrong. To set aside sentences on the basis of humanitarian considerations must only take place where the circumstances of such that it would be a lack of justice and fairness on the part of the courts if they were to permit the sentence to continue.

9. I cannot say that is the case here, and with some regret, the appeal against the sentence is dismissed.