R. v. Leung Lan Siu

HCMA000823/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.823 OF 1996

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Coram : Hon Stock, J. in Court

Dates of hearing : 23 August 1996, 5 September 1996 and 20 September 1996

Date of judgment : 20 September 1996

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J U D G M E N T

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1. This is an appeal against sentence. The appellant is a 27 year old female who entered Hong Kong unlawfully. She has a previous conviction for the same offence and for possession of a forged identity card, for which offences in 1994 she was sentenced to 15 months' imprisonment.

2. On this occasion, she pleaded guilty to two offences - theft, and remaining in Hong Kong without the authority of the Director of Immigration, having landed unlawfully.

3. She landed unlawfully on this occasion, she says, on 15th February 1996. The theft was a shoplifting offence. Acting in concert with another, she stole T-shirts from a shop. The goods she stole were worth about $8,000. The magistrate sentenced her to 15 months' imprisonment on the immigration offence, and 2 months' imprisonment for the theft offence and ordered the sentences to run concurrently, making a total of 15 months. The sentences were, if anything, on the low side, given in relation to the immigration offence that she has done this before, and she could not have complained of a longer sentence in relation to the theft offence.

4. The only matter which originally gave cause for reflection is that the woman who stole the goods with this appellant was sentenced to 3 months' imprisonment suspended for 3 years. Since in the case of this appellant, it is undesirable to impose a suspended sentence as well as an effective term, the course adopted was acceptable.

5. When she appeared before the magistrate, this appellant prayed in aid the fact that she had left behind a large family, including children to look after. She has a husband though, who, she then said, earns a living, although today - this is the third appearance upon which this matter comes before me - she talks of her husband as being involved in drugs. She also said that she was suffering from a lung disease which requires treatment and for which she wanted to go back to mainland China.

6. In the course of the appeal, she presented doctor's certificates which I have to assume spoke of some illness or other, and which referred to treatment she received. The reports were wholly illegible and drawn entirely in technical terms, and in those circumstances, I asked for a medical report, an up-to-date one, and I received one from a doctor at the centre where the appellant is now detained. I was then told that she alleged that she suffered from Systemic Lupus Erythrometosis (or 'SLE'). I was not told whether that allegation by her was well founded, or what the disease was, or what the prognosis was; or whether further treatment might be required and if so, what and when, although the report said that her general health condition was satisfactory.

7. In the circumstances I called for a further report, and addressed specific questions which I wanted answer. That further report which arrived but a few days ago, was not particularly informative and so today I requested the attendance of the doctor who is at the place of this appellant's detention. He has described to me the nature of the disease, and that in particular it affects at various times different organs of the body.

8. I had been somewhat concerned by the reference in the latest medical report, to the fact that this appellant has been referred to the Renal Clinic at Queen Elizabeth Hospital. From the limited research which I have conducted, it seems that this particular disease was potentially serious and could affect the kidney. What I have learned today, however, is that she had an earlier renal problem when last she was in custody in 1994 and 1995, and it was then that she received treatment at Queen Elizabeth Hospital for that problem. I was informed today that the doctor has discovered that the file at Queen Elizabeth Hospital was closed, and that the condition was evidently of no particular concern to the doctors there now, nor was there any need for further treatment. In other words, she was then adequately treated for that problem. The referral that has been made now to Queen Elizabeth Hospital is a referral which was made not because of any recurring problem, but only after this court had raised questions about her health. I am told that an appointment has been made for this appellant to see somebody at the hospital in that regard in December of this year.

9. The doctor informs me, importantly, that this appellant has raised no complaints arising from her disease since her admission in February this year, save for some problems with her skin which is receiving treatment. The condition from which she suffers is obviously one that needs to be watched, and I understand that she continues to receive medication whilst in detention, but it is apparent to me that there is no medical concern about the effect of incarceration upon her condition. Furthermore, if there was a present or continuing renal problem, it would manifest itself in urinary difficulties, and there have been no complaints to that effect.

10. There is authority to the effect that the medical condition of an appellant is not a mitigating feature, and that suitable cases for early release can be made the subject of appeals to the Executive. I was nevertheless concerned to make enquiries in this case because the sentence is relatively short and because I was concerned to know whether incarceration for this appellant was made more difficult than for other detainees by reason of her condition, in which event there might have arisen the question not of release, but of a shorter sentence, perhaps. I am satisfied, in the circumstances and in the light of the evidence which I have heard from the doctor that her medical condition does not justify the shortening of her sentence, noting as I do, in particular, that she is due for release on or about 17th December this year - that is the date she has provided to me.

11. As for her family problems, none is of such dramatic consequence as would warrant her premature release. But in particular, these family problems or their possibility must have been known to her when she came to Hong Kong; and when she set about committing the offence of theft. She cannot validly pray these in aid of her appeal.

12. The fact of the matter is that this is the second time that this appellant has committed this offence, and it must therefore be that she committed it knowing full well what the consequences would be if she were apprehended. The sentence, as I say, is one about which, in terms of the guidelines which are imposed for sentences of this kind, she cannot have any complaint at all. In these circumstances, having thoroughly investigated these matters, this appeal is dismissed.

Representation:

Mr David Leung, C.C., for Crown

Appellant, Leung Lan Siu, in person