HKSAR v. Hui Pik Yin

HCMA001249/2003

HCMA1249/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1249 OF 2003

(ON APPEAL FROM KCCC 18390 OF 2003)

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Coram: Hon McMahon J in Court

Date of Hearing: 12 February 2004

Date of Judgment: 12 February 2004

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J U D G M E N T

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1.This is an appeal against sentence only.

2.The appellant was convicted on her own plea of offences of remaining in Hong Kong without authority after having landed unlawfully (being the 1st charged offence) and of making a false representation to an immigration officer (the 2nd charged offence). She was sentenced to 15 months' imprisonment for the 1st charged offence and to 12 months' imprisonment for the 2nd charged offence, both sentences were made concurrent. That is, a totality of 15 months' imprisonment for the two charged offences.

3.At the time of sentence, the appellant was subject to a sentence of three months' imprisonment which had been suspended for three years. That had been imposed two years earlier. It therefore had one year to run. The magistrate, at the time of sentencing for the present offences, activated the suspended sentence but effectively reduced it to two months' imprisonment, to be served consecutively to the other sentences. That resulted in a final totality of 17 months' imprisonment.

4.The facts which gave rise to the sentences imposed were as follows. The appellant had come to Hong Kong illegally by boat on 17 October 2003. She was pregnant at the time and wished to give birth to her child in Hong Kong. On that same day she both gave birth in a Hong Kong hospital and was arrested for the 1st charged offence. After inquiries had been made of her it became known the appellant had two years previously in November 2001 entered Hong Kong using a falsified Chinese re-entry permit which she had produced to a Hong Kong immigration officer. The document had been falsified by substituting the appellant's photograph for that of the original holder. Those were the facts which supported the 2nd charged offence.

5.Whilst the appellant had been in Hong Kong on that previous occasion in 2001, she had been convicted of offences of soliciting for an immoral purpose, contrary to section 147(1)(a) of the Crimes Ordinance and of breaching a condition of her stay, contrary to section 41 of the Immigration Ordinance. It was in respect of these two offences which she received her sentence of three months' imprisonment, suspended for three years.

6.The appellant does not dispute the sentences imposed by the magistrate are proper, instead, she appeals her sentences on purely humanitarian grounds.

7.Mr Tse who appears for her has provided me with what he described as her background circumstances. He tells me that she came to Hong Kong because a Mr Wong, her co-habitee in China who is also a Hong Kong resident, was sick in hospital in Hong Kong and she wanted to find out about his condition. She also wanted to give birth to her child in Hong Kong so that the child would, she thought, have a greater chance of one day being allowed to live in Hong Kong. She says also that as she and Mr Wong were not formally married but merely co-habitees, she feared she may have been forced to have an abortion in China.

8.None of these matters amount to humanitarian grounds. It is especially true to say that women who unlawfully come to Hong Kong so as to give birth here in the hope of assisting their child to stay in Hong Kong may well be denied the clemency customarily shown to illegal immigrants who come to Hong Kong not knowing they are pregnant.

9.I should further say in regard to the matters advanced on behalf of the appellant that I completely discount the appellant coming to Hong Kong out of fear that her pregnancy may have been terminated by the Chinese authorities. For one thing she was at full term and gave birth on the day of her arrival here in Hong Kong, and this child is her first.

10.It is always difficult to send a woman with a new born baby to prison. But on the rare occasions when that is done or when a pregnant offender gives birth in prison, I understand they are sent to Tai Lam Centre for Women where special provision is made for the custody of mother and child. That is where the appellant is presently in custody.

11.I am quite satisfied the magistrate was right to impose the sentences he did. The appellant has treated Hong Kong laws with utter cynicism. She knowingly returned unlawfully to Hong Kong while her suspended sentence was still in effect. Nothing that has been advanced on her behalf can be regarded as any proper basis for a humanitarian reduction in her sentence. Any such humanitarian basis would require circumstances far more exceptional than those advanced before me.

12.The appeal is dismissed.

Representation:

Ms Grace Chan, SGC for the Department of Justice, for HKSAR

Mr Tse Hon Yuen, instructed by Messrs Eddie P.L. Law & Co.,for the Appellant