HKSAR v. Delos Reyes, Ramir S.

HCMA 178/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 178 OF 2016

(ON APPEAL FROM STCC 166/2016)

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J U D G M E N T

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1.The appellant had pleaded guilty to the first charge of aiding and abetting the breach of condition of stay of his girl friend, and the second charge was failing to register the birth of his child. On the second charge, he was given a fine. On the first charge, the learned magistrate having considered the background circumstances of the case imposed a sentence of six weeks’ imprisonment to which the appeal against sentence pertains.

2.Now the facts are quite simple.  The appellant knew his girl friend from about 2011 and the girl friend had overstayed in Hong Kong shortly after 5 February 2012 when her domestic service contract ended.  On 6 December 2013, his girl friend gave birth to a baby boy and the appellant is the father but the baby was not registered at birth.  Under caution, the appellant admitted that in around 2013, his girl friend had told him about the pregnancy and at that time, he allowed her to move into his house.  Knowing that she had been overstaying, he did not report to the authority because he was afraid that she might suffer from miscarriage if she was imprisoned and that he might lose his job. 

3.The appellant’s girl friend surrendered to the Immigration Department in July 2015 when she registered the birth of the baby boy and thus the appellant was charged failing to register the birth of his son within 42 days.

4.The appellant is aged 55 and has a clear record.  He came from the Philippines to Hong Kong in 1989 and had a degree in architecture.  He had been employed as a project and landscape designer for more than 20 years and has been a permanent resident in Hong Kong since 1996. He resigned in 2014 because when this case came to light and he told the learned magistrate in mitigation he suffered from asthma.

5.The learned magistrate very correctly had decided that this kind of offence is of social concern as it is a serious problem in Hong Kong and that a prison sentence is inevitable even on a guilty plea.  The learned magistrate however concluded at paragraph 9 of his Reasons for Sentence at page 10 of the Appeal Bundle that he did not give much weight to the appellant’s mitigation that he believed that imprisonment might jeopardize the health or even cause a miscarriage of his girl friend because he believed it was unfounded.  The learned magistrate felt that the appellant could have found out about the general care and facilities provided by the Correctional Services Department and so originally had sentenced the appellant to two months’ imprisonment. However when the appellant sought a review of sentence, the learned magistrate at page 25 of the Appeal Bundle at line K said that having listened to all the grounds of the application he felt that the most effective one was the fact that it was the appellant who had prompted or initiated his girl friend to surrender to the Immigration Department, so having considered that, he reduced the sentence to six weeks’ imprisonment.  The appellant appealed that sentence before me today.

6.As I have said, I do agree with the learned magistrate that this kind of offence calls for a custodial sentence and Mr Brook said if a general deterrent sentence was not given that it may encourage others to use a similar excuse, I do agree with that but every case have to turn on its own facts and circumstances.

7.As the Court of Appeal had noted in the case of HKSAR v Leung Pui Shan in 2008, a Hong Kong Court of Appeal case, CACC 317/2007, Mr Justice Stock JA (“as he then was”) had this to say:

“But sentencing is an art which must carefully be moulded not only to the category of the offence, but to the offender. There is a danger of sentencing becoming over‑mechanical with too little regard for unusual circumstances that might arise in relation to the commission of the particular offences and too little regard to circumstances peculiar to the offender. Experience suggests that mitigation advanced sometimes takes the form of a mantra in our courts; with the courts being told of the age, health circumstances and number of the offender’s family members and of other matters which have little to do whatsoever with what has led the particular offender to the commission of the offence and what circumstances peculiar to the offender go in mitigation of sentence. There are certain offences - and these are well‑known - in which personal circumstances and the circumstances leading to an offence will count much less than in others, because those offences demand, as a matter of public protection, deterrence as an overwhelming consideration. That said, the circumstances of this case provide an opportune moment in which to stress the need for individual justice having regard, of course, to the policy considerations that might dictate in a category of case a stern general approach but never forgetting the fact that the courts are on each sentencing occasion dealing with an individual whose peculiar circumstances, if they exist, always deserve careful attention. Consistency in sentencing is important but consistency does not dictate blindness to individual circumstances of a case and to those of an offender. An overly rigid pre‑occupation with uniformity can be inimical to individual justice.”

8.That case has been followed in many other cases and in this case while this is true that the general deterrence would be that an immediate custodial offence is necessary.  I do have to look at the individual circumstances of the appellant and it is true that the learned magistrate in his reduction of the sentence on review had already taken into account the fact that the appellant was the person who prompted his girl friend to surrender.

9.But the other point that I have to consider is also the learned magistrate saying at paragraph 9 of his Reasons for Sentence that he did not accept that the appellant believed that imprisonment might jeopardize the health or even cause miscarriage to his pregnant girl friend because he thought that to be appellant could have looked up the general care and facilities provided by the Correctional Services Department and reassured himself of that.

10.However the learned magistrate having said all that had not reminded himself of the fact that the appellant himself although a professional person was in a totally different field, has a clear record and perhaps may not be cognisant or aware of our Correctional Services’ facilities.  In considering a suspended sentence, the court has to consider first an appropriate term of imprisonment prior to considering whether exceptional circumstances existed for the court to suspend that sentence.

11.I agree with the learned magistrate that six weeks’ imprisonment is appropriate in this case.  However, taking into account the fact that the appellant apparently was not conversant with the workings of Correctional Services Department and did have a genuine belief as all fathers would have that his girl friend might suffer a miscarriage and cause the loss of his son, must have taken quite a heavy toll on his mental state and therefore I do accept, whether one calls that a humanitarian reason or whether the learned magistrate should have put more weight on that belief, I would say that is an exceptional circumstance in this case justifying a suspended sentence.

12.I also believe that sending the appellant to jail would not benefit anyone particularly the fact that he does have an infant son to look after.  Although his wife at present is an asylum seeker may at any moment be denied asylum and have to leave Hong Kong.  The appellant, as Mr Leung pointed out, is aged 59 and as a result of this matter, his employment has been affected and is now doing freelance jobs in order to support his young family.  So having considered the circumstances of this case, the words of the Court of Appeal in Leung Pui Shan, cited above, that one must also have in mind when sentencing in every case apart from the general deterrence, the individual circumstances of the particular appellant and the fact that the learned magistrate did not give weight to the mitigating factor which should have been given weight.  In all those circumstances I therefore will suspend the sentence.

13.I will rely on Mr Leung to fully explain the consequence of the suspended sentence to the appellant but very briefly a suspended sentence means that the appellant had been sentenced actually to six weeks’ imprisonment but that term of imprisonment does not need to be served immediately, it will be suspended for one year and during that year if the appellant commits another offence that may cause the court to order that he serves his sentence for this offence.  I am sure Mr Leung you will explain fully to your client.

14.In those circumstances I will sentence the appellant to six weeks’ imprisonment but suspended for one year.

Mr Edward J Brook, SPP, of the Department of Justice, for the respondent

Mr Andrew C H Y Leung, instructed by S H Chan & Co, assigned by DLA, for the appellant