HKSAR v. Zhang Xiu Qing

HCMA337/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.337 OF 2006

(ON APPEAL FROM STCC 2985 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge Barnes in Court

Date of Hearing : 7 July 2006

Date of Judgment : 7 July 2006

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J U D G M E N T

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1.The appellant pleaded guilty to one count of overstaying (Charge 1) and one count of possession of a forged identity card (Charge 2) before a magistrate.  She was sentenced to concurrent terms of 4 months’ and 15 months’ imprisonment respectively on the two charges.  She now appeals against the sentences imposed. 

2.The admitted facts revealed that on the day in question, as a result of a raid by Immigration Officers, the appellant was found to have overstayed for almost three years (Charge 1).  A forged identity card bearing a photograph of the appellant was found inside the appellant’s room (Charge 2).  Under caution, the appellant admitted that she overstayed after obtaining permission to stay for 14 days on 14 March 2003.  After having overstayed, she paid her roommate $300 and provided her own photograph so that a forged Hong Kong identity card could be arranged to facilitate job seeking. 

3.In mitigation her guilty plea and clear record were emphasised before the learned magistrate.  The learned magistrate was also informed of the appellant’s wish to earn money by working because of her health-related problems, i.e. heart disease and diabetes. 

4.In considering the appropriate sentence for Charge 2, the learned magistrate considered the cases of R v. Shameen Nawaz, HCMA804/1993 and HKSAR v. Li Chang Lee, HCMA935/2004.  The learned magistrate found that as the appellant was in possession of the forged identity card in order to secure employment, there was a link between the defendant’s status in Hong Kong as an overstayer and the forged identity card.  The learned magistrate imposed a 15-month prison sentence for Charge 2, having come to the conclusion that there was nothing in the appellant’s circumstances to warrant a reduction. 

5.In respect of Charge 1, the magistrate took into account the fact that the appellant had overstayed for nearly three years to secure employment, although there was no evidence of actual employment before the court.  The learned magistrate adopted a starting point of six months’ imprisonment and reduced it to four months to reflect the appellant’s plea.  After considering the totality principle, he ordered both sentences to run concurrently. 

6.In a letter dated 3 June 2006, the appellant asked for leniency so that she could go back home early as her days are numbered, according to her.  The appellant complained of severe medical problems as a result of her high blood pressure and high blood sugar situation.  She gave vivid descriptions of how she did not even have the strength to walk; how she was ignored when she requested for some hot water to drink; how she fainted; and how she regained strength after another inmate gave her the hot water requested. 

7.The appellant also complained of severe reaction after taking medication so much so that she dared not ingest the medicine.  After a change of medication her condition improved somewhat, she said.  However, recently her condition deteriorated again and she suffered from racking coughs.  She claimed to be suffering from asthma and the ingestion of cold water or food makes her cough more. 

8.The appellant also referred to her family situation back home.  She said her younger son suffers from epilepsy and the wife of her elder son was not filial.  She came to Hong Kong to earn money in order to treat her ailments.  She acted as a baby-sitter and did not realize she would be sent to jail for committing the offences. 

9.In another letter dated 22 June this year, the appellant complained of coughing blood.  She said she was afraid she would die in jail.  She reiterated the family situation back home and asked for a reduction of sentence. 

10.The appellant first appeared before Deputy Judge Wright on 23 June 2006.  The learned Deputy Judge called for a medical report on the appellant and to have medical records from the Correctional Services Department to be made available.  The matter was adjourned and listed before me. 

11.According to the medical report prepared by Dr Ho Chun Pang, physical examination on admission revealed no abnormality or disability.  The appellant claimed to suffer from diabetes and hypertension.  Urine test confirmed that she suffered from diabetes.  Moderate hypertension was noted.  She was given medication to control her blood sugar level and the blood pressure.  The appellant claimed to have taken herbal medication before and was displeased with the western medication provided, complaining that she suffered from gliddiness and general discomfort.  She demanded to be given herbal medication.  Despite repeated explanation that she needed medication and that the dosage needed fine-tuning, the appellant remained unimpressed and uncooperative.  Dr Ho ended the report by saying that while good medical care would be provided to satisfy the demands of patients, the medical officers were not in a position to administer drugs on demand, particularly herbal medication when they were not sure of the constituents, efficacy and safety. 

12.According to the medical progress and treatment record provided, the appellant refused medication on many occasions and at time she even refused to be admitted into the hospital. 

13.The appellant wrote yet another letter dated 2 July this year to the court.  She asked for the reduction of sentence so that she could prolong her life by seeking treatment from a Chinese herbalist and taking herbal medication.  She said she suffers from numbness of limbs and soon she might be paralysed.  She claimed she fainted recently and was fortunate to be discovered by another inmate.  She said she was afraid to consult a doctor, to be admitted into the hospital and to take the western medication. 

14.When the appellant appeared before me today, she repeated her wishes that she wanted to be allowed out to take Chinese medication.  She claimed that it is not that she did not trust the western medicine, but that the western medicine did not agree with her because she had severe reactions. 

15.After considering the appellant’s situation and, in particular, the letters from her, I am of the view that her situation does not amount to either special reason or humanitarian ground to reduce the otherwise properly imposed sentences. 

16.As Dr Ho mentioned, the dosage needed to be fine-tuned.  It is also inevitable that some kind of reaction or side effect would happen when one takes western medicine.  The appellant cannot have medication on demand.  She might well believe in Chinese herbal medicine but she cannot demand for the provision of Chinese herbal medicine. 

17.For these reasons, the appeal against sentence is dismissed.

Mr Wong King Yin, Joseph, SGC of Department of Justice, for HKSAR

The Appellant, in person