HKSAR v. CHAN SIU PEI

1999, HCMA 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

（APPELLATE JURISDICTION）

MAGISTRACY APPEAL NO. 176 OF 1999

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J U D G M E N T

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1. This Appellant appeared before I.S.C. Candy Esquire on 30th October 1998 in the Magistrate's Court at Kwun Tong on one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed here unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115. He pleaded guilty and was sentenced to 12 months' imprisonment. He now appeals against sentence.

2. In his reasons for sentence, the Magistrate said this:

"The Defendant is an illegal immigrant, I imposed a sentence of 12 months imprisonment allowing a small reduction of the sentence suggested in So Man King 1989 1 HKCLR 142.

The Defendant's mother's illness was mentioned but not the other itinerary of disasters now mentioned by the defendant."

3. This appeal against sentence is brought out of time with an extension granted by the Magistrate. In a statement attached to the application for extension of time for giving notice of appeal, the Appellant said that his mother has recently been diagnosed of having lung cancer and that his wife has fallen down a tree when she went to the mountain to chop and collect firewood. Both have nobody to look after them now, physically or financially. Further, as a result of his wife's fall, no one is looking after his mentally retarded child at home. He has produced documents substantiating those claims.

4. The Appellant has now been incarcerated for over six months. Apparently he is due to be released on the 27th of June this year.

5. Having considered everything before me and purely on humanitarian grounds and without the slightest criticism of the Magistrate of course, I allow the appeal to reduce the sentence to the extent necessary to permit the Appellant's release today.