R. v. AGAPITO EMEILITA M.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 368 OF 1996

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J U D G M E N T

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1. The Appellant was sentenced to 3 months imprisonment for attempted theft and 3 months imprisonment for breach of condition of stay after she pleaded guilty to both charges. The sentences were to run consecutively. She now appeals against sentence on humanitarian grounds.

2. The Appellant was sentenced on 17th February 1996 and has since then been in custody for 3 months. She is due for discharge on 16th June 1996. The Appellant is a Filipina domestic helper and she was allowed to stay in Hong Kong until 15th January 1995. But on 26th April 1995 she was still working as a domestic helper and on that day she was found by her employer inside the employer's bedroom taking a $100 note from his wallet. She fled from the premises and was not arrested until 14th February 1996 when she surrendered to the police.

3. The Appellant was 7 months pregnant at the time of her surrender and her expected date of delivery as certified by the doctors in Queen Elizabeth Hospital and Tai Lam Correctional Institute is 22nd June 1996.

4. The magistrate in his reasons for sentence said that he concluded that the Appellant deliberately came to be pregnant after the commission of the offence and to surrender at a late stage of her pregnancy in order to attract sympathy.

5. One of the grounds of appeal is that in the absence of evidence or enquiry, the magistrate was wrong in concluding that the Appellant deliberately became pregnant to attract sympathy. Mr Ma for the Appellant urges me to reduce the sentence to enable her to have the baby delivered at her home country.

6. Miss Mohamed for the Crown refers to two authorities. The first one is R.v. Chong Yuk Lun Mag. App. 129/90 where Ryan J regarded it not wrong to impose a custodial sentence for breach of condition of stay even for a first offender who has pleaded guilty. The second case is the Court of Appeal case of R. v. Sajjad Ahmed Crim. App. 434/93. This case does not set out any hard and fast rule in dealing with humanitarian grounds in cases of this nature; it is to be decided on a case to case basis. Miss Mohamed concedes that 3 months for a first offender in an attempted theft of $100 is on the high side.

7. Having regard to the Appellant taking up employment during her overstay in Hong Kong 3 months imprisonment cannot be regarded as manifestly excessive. 3 months imprisonment for attempted theft involving the small sum of $100 for a first offender is on the high side. The two offences are separate and distinct offences and sentences for them should run consecutively. Except for the sentence on the attempted theft, the magistrate could not be faulted.

8. The Appellant is in an advanced stage of pregnancy and it would be for the common good that her baby be delivered outside the environments of a prison setting. She is due for discharge in about a month's time. She has already served 3 months. On humanitarian grounds and having regard to the nature of the attempted theft, it would be appropriate for me to reduce the total sentence of 6 months.

9. The sentence of 3 months for attempted theft is set aside and a sentence of 2 months is substituted for it. The sentence of 3 months on breach of condition of stay shall stand. The total sentence is now 5 months which will enable the Appellant to be discharged in a week or so from now. The appeal against sentence is allowed to that extent.