R. v. Lo San Wan

HCMA000625/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 625 OF 1995

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Coram: The Hon. Mr. Justice Leong in Court

Date of hearing: 20 September 1995

Date of delivery of Judgment : 20 September 1995

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J U D G M E N T

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1. The Appellant was convicted on her own plea of guilty to two charges: possession of a forged Hong Kong identity card and remaining in Hong Kong without lawful authority. She was sentenced to 15 months imprisonment on each concurrent.

2. The Appellant was stopped during an identity card check on 2.5.95 at a MTR station and she produced an identity card the photograph on which was found to have been substituted with hers. In mitigation counsel on her behalf pleaded that she came to Hong Kong to look for a man who had asked her to marry him but soon afterwards disappeared. The sole purpose of the identity card was to enable her to look for this man. The learned magistrate found nothing which would merit a departure from the normal sentence of 15 months imprisonment for such offences and imposed the sentences accordingly.

3. On appeal, counsel for the Appellant submitted a number of medical certificates from the Dongguan City Fu Cheng Hospital. The first one dated 25.12.95 certifies that the Appellant's father suffered from cerebral hemorrhage and was confined to bed requiring continue medication and attention. The second one dated 1.8.95 certifies that her father was discharged from hospital in February and he stayed at home requiring someone to look after him. The third one dated 15.8.95 certifies that her father's condition was unstable and was unable to take care of himself. It also indicated that his life was in danger and suggested that family members be at home to see him.

4. The Crown after an adjournment of four weeks is unable to confirm the authenticity of these certificates. The Crown asks for further adjournment. Bearing in mind the Dongguan City Fu Cheng Hospital is not far from Hong Kong, four weeks would be more than enough time for result to be known. I do not think given further time, any result will be likely forthcoming. I am prepared to assume that these documents are genuine since the Crown is not in a position to challenge them.

5. The Crown submitted that the Appellant was aware of her father's illness before she came to Hong Kong and his illness could not be regarded as strong humanitarian consideration.

6. From the medical certificates, the Appellant's father's condition was stable and had been at home after discharge from hospital before the Appellant came to Hong Kong. The unstable condition and imminent death came after the Appellant was incarcerated. As an act of mercy, the Appellant should be allowed to return to her father's bed side. Accordingly the appeal is allowed and the sentence is reduced to a term to enable the Appellant to be immediately discharged and repatriated.

Representation:

Mr. Winston Chan, C.C. for Crown

Miss Rosaline W.Y. Wong (M/s Chong, Leung & Co.) for the Appellant.