R. v. CHOW CHOI WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 351 OF 1997

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J U D G M E N T

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1. The appellant was convicted by her own plea of three offences : (a) possession of a forged Hong Kong Identity Card; (b) using a forged Hong Kong Identity Card and (c) remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. She was sentenced to 12 months imprisonment for each conviction concurrent. She now appeals against sentence.

2. The appellant is a pregnant woman. A medical report submitted on her behalf states that her expected date of delivery is 24^th October 1997. Miss Lee, counsel for the appellant, submitted that at the time of sentence, the magistrate was not informed that she was pregnant because at the time the appellant herself was not aware of her pregnancy. The appellant would have served her sentence of 12 months and would be released on 6^th October 1997. The appellant would be repatriated when she was near child birth. A reduction of her sentence would enable her to return earlier to China when it would be safe for her to do so.

3. Miss Lee accepted that the sentences of 12 months for offences of the type the appellant was convicted were in no way wrong or excessive. However, she asked the court to consider the appeal from a humanitarian point of view.

4. Mr Moultrie referred me to a number of cases on pregnancy of the defendant in relation to mitigation, especially to R. v. Chan Lai Ha Criminal Appeal 78/94 where the Court of Appeal observed that the court did not regard the fact that the appellant there was pregnant as justifying any reduction in her sentence.

5. It should be noted that the case of Chan Lai Ha was a case of serious fraud involving a not insubstantial sum. The present case is one of those illegal immigrant cases where as an act of clemency, it should serve all interests in Hong Kong for a pregnant illegal immigrant to be repatriated than be further detained here.

6. The appellant has been in custody since February 1997 and by now has served the equivalent of seven months of her sentence. This period of custody would be sufficient as a deterrent for her and the chances of her returning would be reduced.

7. In the circumstances, the appeal against sentence is allowed and the sentence of 12 months imprisonment is set aside and substituted by a term which will enable her to be released immediately and repatriated forthwith.