The Queen v. Chu Yuk Hang and Another

HCMA001226/1990

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 1226 OF 1990

BETWEEN

Coram: The Honourable Mr. Barnes in Court

Date of Hearing: 9 April 1991

Date of Delivery of Judgment: 9 April 1991

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JUDGMENT

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NG Tim-chueng

1. The Appellant pleaded guilty to a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully. He was sentenced to imprisonment for 15 months.

2. In mitigation, he said that he came here on the 1st August but haling failed to find a relative he was only here for some 10 hours or so before he was arrested. He said that he had 3 children which was in excess of the number allowed by the law in China. He went on to say that as a result of that his children had to cease their studies and his family was in difficulty. And he came here to earn money.

3. In this appeal before tae, he has submitted a number of documents. Two are letters from one of his daughters, one dated the 15th August 1990 and the other dated 19th August 1990. Others are certificates which showd that his parents who are both 76 years of age were not in good health when the certificates were issued on the 12 August 1990. Although he said in his mitigation before the magistrate that his children had to cease their studies, the letters from his daughter indicate that that is not so. In any event he did not suggest to the magistrate and does not suggest now that the reason for his coming here was the ill health of his parents. It is clear from the certificates which were issued a few days after his coming here that his parents must have been in that state of ill health at the time he left. One certificate does indicate that his mother's condition may have deteriorated since he left. But there is nothing in the certificates to indicate that there is any urgent need for him to return to his parents. Given the ordinary remissions for goon conduct, he should be released within the next few weeks. There is no in the material before me indicating that his release ought to be expedited.

4. Accordingly, his appeal on the basis of humanitarian gounds fails and is dismised.

CHU Yuk-hang

5. This Appellant pleaded guilty to a charge of remaining in Hong Kong without the authority of the Director, of Immigration. After having landed unlawfully he was sentenced to imprisonment for 15 months. At the time of conviction, the only matter which he put forward by way of mitigation was that he had been here for less than one hour.

6. In his appeal against sentence, he submits that his sentence should be reduced on humanitarian grounds. He has submitted a number of documents including letters from his wife and certificates from the hospital authorities in the area in which he lives in China. The material he submits is very recent, some of the letters and telegrams having been sent in late February. There have been two noticeable changes in his family circumstances since he has been in prison. One is that his wife has been diagnosed as suffering from a serious gynaecological disease and the other is the sudden passing away of his father. The documents indicate that there is a real need for him to return to his family as soon as possible due to circumstances which did not exist at the time he made his decision to come here unlawfully.

7. In his case I can see humnitarian grounds for interfering with a sentence which was Properly imposed on him at the time of his conviction. I propose in his case to discourage him from thinking of coming here again by substituting a suspended sentence the length of which will take account of the period that he has already served. Accordingly, I allow his appeal, quash the sentence and substitute therefor a sentence of imprisonment for 3 months to be suspended for 2 years. This appeal is allowed to that extent.

Representation:

Mr. S.R. Bailey, C.C. for Crown

Mr. Wong Po Wing (D.L.A.) for Appellants : CHU Yuk-hang and Ng Tim-cheung