THE QUEEN v. YAN LAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 194 OF 1995

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JUDGMENT

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1. This is an appeal against sentence by the appellant. She is a Chinese resident. She bought a forged Chinese permit, sneaked into Hong Kong and in less than a week she was stopped and searched by the police while she was in the street. She pleaded guilty to remaining unlawfully in Hong Kong and to possession of a forged travel document. She was sentenced to 15 months' and 6 month's imprisonment respectively for these two offences, both sentences to run concurrently.

2. In mitigation before the learned magistrate, the appellant said that she had paid $10,000 for the forged document and that this money was all her savings intended for her marriage. She came to Hong Kong with the forged document. After sentence, she applied for a review. In further mitigation, she told the learned magistrate that she was pregnant, she had a boy-friend in Hong Kong and was pregnant by this person. She came to Hong Kong to find him but with no success. She said she had no intention to illegally stay in Hong Kong. Apparently the learned magistrate did not believe that she was pregnant. There was no medical evidence before him. He confirmed the sentence. However, he added that if there was any medical evidence, he might further review the sentence.

3. I said the learned magistrate did not seem to believe her because in the Reasons for Sentence, the learned magistrate said :

"The court asked when she found out she was pregnant. The appellant said November 1994, she had not told the court of that in December. It is not a matter a woman is likely to forget. This submission cast doubt on the truthfulness of her assertion."

4. I notice that the appellant appeared before the learned magistrate on 5th December last year. If she was indeed pregnant in November, I would suspect that in early December she might not be fully aware of this fact or even if she had suspected she was then pregnant, there was no confirmation of that. So it could be excusable for the appellant not to have disclosed this to the learned magistrate on the first occasion when she pleaded guilty to the charges. She might not be able to confirm this fact.

5. When she appeared before me, it was clear she was really pregnant. I was concerned whether in this advanced stage of pregnancy she was fit to travel back to China. So I adjourned the case and called for a medical report on whether she would be able to travel back to China, particularly in view of the fact that her native town was somewhere in Sichuan. I was told that although she lived in Sichuan, she had someone in Shenzhen to look after her and to see to it that she would deliver her baby in good care.

6. Anyway, I have now before me a medical report confirming that she should be in the 32nd week of gestation, that there was no other physical illness and that she was fit to travel back to China. She said that she wished to give birth to her baby in China. She could have the comfort and support of her friends and relatives in Shenzhen and she would have adequate provisions.

7. In these circumstances, I do consider that there are humanitarian grounds for me to depart from the usual tariff of 15 months' imprisonment on this type of offences. It is only fair to say that had the learned magistrate been made aware of this medical evidence, I am sure he would do the same. Unfortunately, instead of applying further for a review before the learned magistrate, the appellant chose to come before me. The Crown, quite properly, did not seek to argue otherwise. So in the circumstances, I would allow the appeal against sentence. I would reduce her sentences for the two offences to which she had pleaded guilty to such time as will enable her immediate release so that she can be sent back to China as soon as possible.