THE QUEEN v. MAK SHUK YI

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JUDGMENT

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Stuart-Moore, J; (giving the judgment of the Court)

1. This is an application for leave to appeal against the sentence of two years and eleven months imposed by Deputy Judge Thomas on the 24th June 1994 in respect of a charge of assisting the passage to and within Hong Kong of five unauthorised entrants. The applicant pleaded guilty to the charge brought under s.37(D)(1)(a) of the Immigration Ordinance, Cap. 115, and on her behalf it is contended that the sentence was manifestly excessive, firstly because there has been an insufficient reduction in sentence to take account of the plea; and secondly because of the particular background and circumstances of the applicant who has no previous convictions.

2. The facts were very simple. On 11th April 1994, police who were patrolling the waters in the region of Deep Water Bay encountered the unlit vessel in which a Chinese male, Wong Keung, was steering and five females were passengers apart from the applicant herself. The five women were unauthorised entrants from China aged between 18 and 22, and when they were questioned, they explained that they were sneaking into Hong Kong without documents. They were arrested and the applicant, aged 27, confessed to being asked by someone to assist in bringing over five girls for a reward of between 2,000 to 3,000 RMB. It was the applicant who had asked Wong Keung to bring them to Hong Kong and as he was not sure of the route, it was she who directed him.

3. The mitigation advanced at Court, and maintained here today, is that the applicant had a son then aged 4 and a daughter then aged 9 months and that she was driven to commit the offence because her husband had lost a lot of money whilst gambling. There were no aggravating features, the illegal immigrants were all adults and the boat was seaworthy. An additional factor was that the applicant, at the time of committing the offence, was aware that she was pregnant. By the time the matter reached Court, she was 5 1/2 months pregnant.

4. The learned Deputy Judge correctly, in our judgment, took as his starting point a period of four years' imprisonment. This, he reduced to three years to give effect to the discount for a plea, and reduced this by a further month because of the time in custody before her first appearance but would otherwise not have been included in the computation of any sentence of imprisonment imposed under s.67A of the Criminal Procedure Ordinance.

5. At the District Court, the case of The Queen v. Lee Yuk-ying & Ors (unreported) Magistracy Appeal No.786 of 1992 was cited as authority for the submission that the pregnancy of a mainland Chinese defendant should be treated as a humanitarian factor and that the defendant should be allowed to give birth at home. However, the learned Deputy Judge specifically gave no allowance for this applicant's pregnancy, finding that the offence in the cited case of possessing another person's identity card as well as another offence of remaining in Hong Kong without authority were far less serious than in the instant case. But there was another and more important distinction, namely that the women in the cited case were unaware, unlike the present case, that whilst committing the offences they were pregnant.

6. We agree with the findings of the Deputy Judge who tried this matter and accordingly we refused the application.