R. v. Mo Hoi Ying

HCMA000236/1997

1997, NO. MA 236

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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Coram: Hon. Wally YEUNG, J. in Court

Date of hearing: 17 April 1997

Date of judgment: 17 April 1997

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REASONS FOR JUDGMENT

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1. The applicant, MO Hoi-ying, pleaded guilty to a single charge of Remaining in Hong Kong without authority. She was sentenced to a term of nine months' imprisonment.

2. The facts of the case indicate that the applicant was smuggled into Hong Kong by boat in January of 1997. At the time of the arrest, she was actually working as a prostitute.

3. It is clear that the nine months' imprisonment is indeed a lenient sentence for the offence in question. The learned magistrate in imposing a nine months' sentence specifically took into consideration the pregnancy of the applicant. According to a medical report which was available to the learned magistrate at the time of the sentence, the applicant was pregnant with an expected delivery date of 7 September 1997.

4. The applicant claimed that she was unaware of the pregnancy when she was smuggled into Hong Kong. I do not consider this aspect to be of too much significance.

5. In support of this application, it is suggested that the sentence of nine months' imprisonment is excessive and perhaps wrong in principle in the light of the pregnancy of the applicant. In principle, I do not agree with such a suggestion. As I have observed, a sentence of nine months' imprisonment is a relatively lenient sentence for an offence of Remaining in Hong Kong without authority in the light of the guidelines of sentence for offences of this nature.

6. My only concern is that with the expected delivery date of 7 September 1997, there is a high probability that the child will be born while the applicant is in jail. In any event, the applicant will spend the late stage of her pregnancy in jail, which can be an exceptional hardship.

7. For pure humanitarian ground, and to avoid the child having to be born in jail, or to be born when the applicant is in jail, and/or the applicant having to spend the final stage of her pregnancy in jail, I have decided to allow the appeal against sentence by reducing the nine months' imprisonment to one of four months' imprisonment, and I make the order accordingly.

Representation:

Mr Lambert LEE (DLA) for the Appellant

Miss Denise CHAN, Senior Crown Counsel, for the Respondent