1997, NO. MA 852
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
Coram: Hon Leong, J. in Court
Date of hearing: 25 November 1997
Date of judgment: 25 November 1997
J U D G M E N T
1. The appellant is an illegal immigrant coming from Vietnam. She pleaded guilty to one count of remaining in Hong Kong without theauthority of the Director of Immigration after having landed unlawfully in Hong Kong. She was sentenced to 15 months imprisonment.
2. She now appeals against sentence. Mr Newman Wong submits that there can be no fault in any way regarding the sentence imposed. Hetells the court that the appellant has come to court purely to ask for clemency. The appellant is pregnant and this was not knownto her when she came to Hong Kong and at the time when she was sentenced. The magistrate in his reasons for sentence said that heonly came to know about this when the appellant came before him to ask for leave to appeal against sentence out of time. He saidthat had that been known to him at the time of sentence, he would have imposed such a term as would enable the appellant to returnto Vietnam in time for the delivery of her baby.
3. Mr Wong refers to a number of authorities where the appellate court exercised clemency to enable pregnant appellants to give birthto their babies outside prison environments. (R. v. Lee Yuk Ying & Others, Mag. App.786/92; R. v. Mo Hoi Ying, Mag. App.236/97 and HKSAR v. Chan Ping Ping, Mag. App.571/97)
4. Mr Cheung for the Government very fairly accepts that this is a case for exercise of clemency and concedes to the appeal.
5. Having regard to the appellant being at an advance stage of pregnancy and she had been in custody for 6½ months and if she is toremain in custody, her baby will be born in prison environments and the appellant would give birth without the support of her family,as an act of mercy, the appeal is allowed and the sentence of 15 months set aside. A sentence of such a term as would enable theappellant to be released forthwith and repatriated immediately back to Vietnam is substituted.
Mr W.S. Cheung, D.P.G.C., for HKSAR/Respondent
Mr Newman Wong, inst’d by D.L.A., for Appellant