HKSAR v. CHAK YUK WAN

HCMA1204/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1204 OF 1999

(ON APPEAL FROM WSCC 14192 OF 1999)

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J U D G M E N T

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1. The appellant Madam Chak Yuk Wan, arrived in Hong Kong from China and overstayed for some 11 months. She surrendered herself to the authorities and was brought before the court. Upon her plea of guilty, the learned magistrate imposed a one-month prison sentence. However, there is a sentence of three months' imprisonment suspended for two years in operation at the time when she pleaded to the present charge. The learned magistrate, in my view quite rightly so, activated the suspended sentence. She is now effectively serving a period of four months' imprisonment.

2. Since her incarceration, she was informed by her husband that the Mainland Chinese authorities have approved her application for a one-way entry permit to Hong Kong. The court is informed that it took her 10 years for the application to be processed and granted. I am also informed that there is a rigid and quite inflexible rule that the appellant has to present herself to the Mainland authorities to process her application. If she is not able to process the application, the permit would be cancelled which effectively would mean that she would be placed at the end of the queue.

3. Mr Polson for the appellant today has quite rightly conceded that the sentence imposed by the learned magistrate, in view of the facts of this case, is neither manifestly excessive nor was it wrong in principle. The only question before me is whether on humanitarian grounds, it is justifiable for this court to interfere with the sentence imposed. It has been suggested by Mr Polson that the court could order the rest of the sentence be suspended or alternatively, she could be put on bail so that she can process her application in Mainland China.

4. I am mindful that her present sentence would be spent towards the end of January, which is a month hence. In view of the special circumstances of this case, I take the view that justice might be tampered by the humanitarian considerations which are present in this case. In order to expedite her processing the immigration procedures, I would make an order to the effect that she would be released forthwith so that she can return to Mainland China and process her immigration documents.

5. For the reasons given, the sentence imposed by the learned magistrate is set aside to the extent that she will be released forthwith from prison today. The appeal against sentence is allowed.