THE QUEEN v. LEE YUK YING AND OTHERS

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J U D G M E N T

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1. There are three applicants before me; Lee Yuk Ying who is 21 years of age, Lam Lai Hong, 25, and Chan Lai Yu also 25. Each of them has made application through counsel for leave to lodge their appeals against sentence out of time.

2. On 22 August 1992 they came before Mr. Jones, Magistrate, on two charges : (a) using an identity relating to another person contrary to Section 7A(1A) of the Registration of the Persons Ordinance, Cap. 177 and (b) remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully contrary to Section 38(1)(b) of the Immigration Ordinance Cap. 105. They pleaded guilty and were sentenced to 15 months' imprisonment on each charge to be served concurrently.

3. The first applicant landed in Hong Kong unlawfully in June this year. The second applicant did so likewise on 21 July and the third applicant some time in the month of July 1992. They were working in a garment factory until they were apprehended. There was nothing before the Magistrate to distinguish the cases of these three applicants from those of many others who enter Hong Kong unlawfully from China, use identity cards relating to other persons and then remain in Hong Kong without the authority of the Director of Immigration. In such cases the normal sentence will be 15 months' imprisonment. The policy behind such sentence was laid down by the Court of Appeal in So Man-king (1989)1 HKLR 142. This was reached after an exhaustive analysis of the range of sentences passed by magistrates in different magistracies over a period of time. Where offences have unquestionably been committed against the Laws of Hong Kong, the law requires that sentences passed should have some deterrent effect upon the offenders. Public policy requires that there should be some consistency in sentence.

4. The guideline in So Man-king emphasized the policy of the law that economic hardship is no excuse for breaking the law. The guidelines in So Man-king have recently been reaffirmed by the Court of Appeal on reference from the High Court in the case of Chan Wun Sang MA No. 6 of 1992 (10 October 1992, reported).

5. Each of the applicants has through counsel pleaded economic hardship suffered by them and their families in China. The same considerations were put before the Magistrate. On the facts before the Magistrate in August 1992 he was acting entirely properly in imposing the sentences that he did. What he was not aware of at the time is this : that each of the applicants was in fact, in August 1992, at a very early stage of pregnancy. As regards the first applicant she is single, lives with her parents in China and hopes to marry her fiancee on return to China. The second applicant is married; her husband is a farmer and she has a 3 year old son. The third applicant was recently married. The position as it stands today is this. If their applications for leave to appeal out of time were dismissed then the babies they are now carrying will be born in prison. The applicants will give birth without the comfort and support of their family members. This is a very considerable personal hardship, both on themselves and on their unborn babies. This is something the Magistrate plainly had not foreseen and could not have foreseen. The position seems to be that the applicants themselves were unaware of the fact that each of them was pregnant in August this year.

6. Section 119 subsection 1(d) of the Magistrates Ordinance empower me to make such order in the matter as I think just and by such order exercise any power which the magistrate might have exercised.  I feel confident that if the facts as they appear to me today were present before the Magistrate, he would have exercised clemency and would have imposed such terms of imprisonment as ensured that the applicants were released in time for them to return to their families and to give birth in China. This is a matter of particular importance as far as the first and third applicants are concerned since they will be giving birth for the first time.

7. In the exceptional circumstances of the case I feel I ought to exercise such powers as I have under Section 119 ss.l(d) and allow the applications for leave to appeal out of time. I bear in mind particularly this fact, that it was only when the applicants realised that they were pregnant that the applications for leave to appeal out of time were made. I will treat the applications before me now as the hearing of the appeals against sentence, set aside the sentences of 15 months. The Order of the Court is that the respective sentences of 15 months' imprisonment be discharged and the applicants be released from custody as soon as practicable.