HKSAR v. Chan Ying

HCMA001023/2001

HCMA 1023/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1023 OF 2001

(ON APPEAL FROM KTCC 5571 OF 2001)

______________

______________

Coram: Deputy High Court Judge McMahon in Court

Dates of Hearing: 18 October 2001, 2 and 19 November 2001

Date of Judgment: 19 November 2001

_______________

J U D G M E N T

_______________

1.This is an appeal against sentence.

2.The Appellant was convicted on her own plea before a magistrate of offences of remaining in Hong Kong without authority after having landed unlawfully, and of possession of a forged travel document. She was sentenced to 12 months' imprisonment in respect of each offence. Those sentences were ordered to be served concurrently.

3.She now appeals those sentences. She says they are too severe given the fact that she is pregnant.

4.At the time of her sentence by the Magistrate on 30 August 2001, she was apparently unaware that she was pregnant and this factor was accordingly not taken into account by the learned sentencing magistrate.

5.For the purposes of this appeal, having seen two medical reports by Dr Ho Chun-pang, a medical officer at Tai Lam Centre for Women, I accept that the Appellant was in fact unaware she was pregnant when she arrived and remained illegally in Hong Kong. Her child is apparently due to be born on 6 May 2002.

6.I have been referred to a number of cases involving pregnant female offenders unlawfully in Hong Kong having their sentences commuted on the humanitarian ground of their pregnancy. In R v Lee Yuk-ying and Anor MA 786/1992 Litton JA (as he then was) took the view that, certainly so far as offenders are concerned whose pregnancy was unknown to them when they arrived in Hong Kong, that pregnancy was a proper humanitarian basis for allowing them sufficiently early release to have their child born in their home country.

7.In HKSAR v Wu Fei-wan MA 985/1997 Leong J (as he then was), in dealing with a similar case relating to an offender who discovered she was pregnant only after coming to Hong Kong unlawfully, held that constituted a sufficient humanitarian basis for an exercise of clemency which allowed the early release of the offender so as to allow her to give birth in her home country of China.

8.The facts of R v Baltazar Cecilia C MA 992/1996 were slightly different. In that case, Leonard J. dealt with an offender who was aware she was pregnant when she came to Hong Kong unlawfully. She was not a first offender and had come to and remained in Hong Kong unlawfully on previous occasions. Leonard J. refused to interfere with the magistrate's sentence of 15 months' imprisonment for the reasons that the offender was aware that she was pregnant when she came to Hong Kong and that further, she was not a first offender.

9.He said in refusing to allow her appeal against sentence:

"Had this Appellant been a first offender, it might well have been possible to take a lenient course and to order her discharge in time for the birth of the baby to take place outside prison but in the present case, this Appellant came to Hong Kong knowing full well that she was already subject to a suspended sentence and knowing full well what the possible consequences would be if she was caught. This is not a case where there is any evidence that she only became aware of her pregnancy after she arrived in Hong Kong....."

10.The present state of the authorities so far as they have been presented to me seems to be that the pregnancy of an offender, as least so far as immigration offences are concerned, is a significant humanitarian factor properly allowing the commutation of an otherwise proper sentence of imprisonment so as to allow the offender the opportunity of giving birth in her home country.

11.It may well be that other factors, such as the fact that the offender is not a first offender, or that offences unrelated to the furtherance of her unlawful stay in Hong Kong had been committed, will override any humanitarian consideration arising from her pregnancy and require the otherwise proper sentence of imprisonment to be implemented.

12.But in the present case it seems to me that the Appellant falls squarely into that category of pregnant immigration offender which these courts have treated with customary clemency.

13.She is now nearly 4 months pregnant.

14.Accordingly, I order that the respective sentences of 12 months' imprisonment imposed upon her be set aside and be substituted in respect of each offence with a sentence of 4 months' imprisonment to be served concurrently.

Representation:

Ms Sally Yam GC, of the Department of Justice, for the Respondent.

Ms Gekko S.Y. Lan instructed by Legal Aid Department, for the Appellant.