HKSAR v. YOU SHUNE

HCMA000581/2003

HCMA 581/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 581 OF 2003

(ON APPEAL FROM KCCC 8342/2003)

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BETWEEN
HKSAR Respondent
AND
YOU SHUNE Appellant

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Coram: Hon Beeson J in Court

Date of Hearing: 13 August 2003

Date of Judgment: 13 August 2003

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J U D G M E N T

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1. The Appellant was charged with Remaining in Hong Kong Without the Authority of the Director of Immigration after having Landed Unlawfullyin Hong Kong, contrary to s. 38(1)(b) of the Immigration Ordinance, Cap. 115. She pleaded guilty and was sentenced to 16 months’ imprisonment by the Magistrate. The Appellant had previously been convictedon 17 October 2002, for Breach of Condition of Stay and had been sentenced to 1 month’s imprisonment, suspended for 2 years. TheMagistrate considered there were no grounds why that suspended sentence should not be activated and having activated it, the totalsentence was 17 months’ imprisonment.

2. The agreed facts showed the Appellant had sneaked into Hong Kong by a fishing junk on 17 December 2002, because she wanted to givebirth to her baby in Hong Kong. She remained in Hong Kong after arrival until her arrest on 18 February 2003 at the time she approachedthe Tuen Mun Hospital.

3. In mitigation, the Magistrate was told that the Appellant was married to a Hong Kong resident and the offence was motivated, notjust by her desire to give birth in Hong Kong, but also the need to care for her husband who had suffered an injury at work. However,I note that when questioned by the police, she did not mention her husband’s illness; that was mentioned only in court by her lawyerwhen mitigating.

4. The Magistrate considered that the entry to Hong Kong with a view to giving birth was an aggravating factor because the offence adverselyimpacted upon the public health system of Hong Kong and enabled the Appellant to jump the immigration queue. It meant that her childwould acquire immediate right of abode in Hong Kong. The Magistrate correctly considered that leniency would send a wrong messageto mainland expectant mothers who would continue to commit offences such as this.

5. In her grounds of appeal, the Appellant told the court she was remorseful and had come to Hong Kong as she was anxious to see herhusband after she learned he had sustained an injury at work. She said that her husband and his parents were living on his employee’scompensation and were unable to pay for extra care for her daughter. She asked to reduce the term of imprisonment so that she couldlook after her daughter.

6. At the appeal, she produced various documents to confirm that her husband had been admitted to the hospital on 16 October 2002 witha closure pelvic fracture and various medical certificates were produced confirming he was still on sick leave. The Appellant alsoproduced her marriage certificate, which confirmed that she married to a man called Leung Chi Men on 10 August 2002. She producedpart of the Hong Kong Housing Authority Tenancy Agreement in the name of Leung Chi Men and confirming that two people, his fatherand his mother, lived with him at that address.

7. I have to consider whether in the circumstances of this case, the sentence is manifestly excessive were wrong in principle. Havingdone so, I am satisfied that it is neither. Although one has sympathy for the family conditions of this Appellant, the Magistratewas correct in saying that leniency is not to be encouraged for this type of offence. This appeal is dismissed.

(C-M Beeson)
Judge of the Court of First Instance

Representation:

Mr Cheung Wai Sun, DPGC, for HKSAR

The Appellant, in person