HKSAR v. CHEN JUAN
- Citation
- HKSAR v. CHEN JUAN
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 20 March 2007
- Posture
- Criminal Appeal / Sentence Appeal From Magistracy
- Case number
- HCMA223/2007
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 20 March 2007
- Posture
- Criminal Appeal / Sentence Appeal From Magistracy
- Case number
- HCMA223/2007
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Magistrate's imposition of 15 months' imprisonment was appropriate; pregnancy and desire to give birth in Hong Kong did not amount to exceptional circumstances to reduce the usual sentence, and prior breaches justified maintaining the sentence.
Court disposition
appeal dismissed
Orders
- Sentence of 15 months' imprisonment upheld
02
Material facts
Parties
Appellant
AppellantProsecution
RespondentAmounts and remedies
- Imprisonment Term Months: 15
03
Procedural history
Posture
Criminal Appeal / Sentence Appeal From Magistracy
04
Questions and positions
Legal issues
- 01
Whether the sentence of 15 months' imprisonment was excessive
- 02
Whether pregnancy or desire to give birth in Hong Kong constitute exceptional circumstances warranting reduction
- 03
Whether prior breaches of stay conditions aggravate culpability and affect sentencing
Party arguments
- Applicant
- The appellant pleaded guilty, was seven months pregnant at arrest, had a husband resident in Hong Kong and wanted her child born in Hong Kong; she asked for reduction of the 15 month sentence and indicated she has five children and wishes to care for a young child.
- Respondent
- The Magistrate held that pregnancy and the wish to give birth in Hong Kong were not exceptional circumstances to depart from the usual 15 month sentence; the appellant had two earlier breaches for which courts had been lenient and thus could not be in doubt as to her position; the sentence was not excessive or wrong in principle.
05
Court’s reasoning
Legal principles
- 01
Immigration Ordinance s38(1)(b)
Unlawful entry and remaining without authority is an offence under the Immigration Ordinance
- 02
Sentencing principles and Magistrate's discretion (case law and practice)
Sentencing should reflect prior similar breaches and lack of exceptional mitigation; magistrate has discretion to impose a custodial sentence where usual sentence is appropriate
06
Ratio, limits and disposition
Ratio decidendi
The Magistrate's imposition of 15 months' imprisonment was appropriate; pregnancy and desire to give birth in Hong Kong did not amount to exceptional circumstances to reduce the usual sentence, and prior breaches justified maintaining the sentence.
Obiter and limits
- Courts had treated the appellant leniently for earlier breaches
- The appellant's family circumstances and childcare responsibilities did not persuade the court to interfere with the sentence
Court disposition
appeal dismissed
- Sentence of 15 months' imprisonment upheld
Source and reliance status
Court of First Instance · 20 March 2007
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 20 March 2007
bjbj __ Before: Hon Beeson J in Court Date of Hearing: 20 March 2007 Date of Judgment: 20 March 2007 _____
J U D G M E N T ___ The Appellant pleaded guilty and was convicted in the Magistracy of one charge, in that having landed in Hong Kong unlawfully she remained in Hong Kong, without the authority of the Director of Immigration, such offence being contrary to section 38(1)(b) of the Immigration Ordinance. The Appellant was sentenced to imprisonment for 15 months and now appeals against that sentence on the grounds that it was too severe. The facts admitted by the Appellant showed that she arrived in Hong Kong by boat on 27 January 2007 and was arrested later on the same day. She was seven months pregnant and had two previous convictions, in 2004 and 2006, for breaches of condition of stay. The Magistrate was told the Appellant s husband was a Hong Kong resident and she had a two-year-old child who was being looked after by her parents in China. Today, the Appellant told the court g Kong legally, but he surmised that such an omission may have been linked to her previous offences. The Appellant s counsel told the Magistrate that she had come to Hong Kong so her child could be born here. There was no other mitigation. The Magistrate did not consider the pregnancy, or the Appellant s wish to have her child born here were sufficiently exceptional circumstances to justify his departing from the usual 15 months sentence. I note that the courts treated the Appellant leniently
in respect of her two earlier breaches. She could not have been in any doubt as to her position. On appeal, the Appellant told the court that she did not say that the sentence was wrong, but she asked for a reduction as she has 5 children. She wants to care for her daughter, age 2 or 3, herself. Unfortunately, there is no merit in any of the matters put before me by the Appellant. The Magistrate s sentence is not excessive or wrong in principle. There is no merit in this appeal which is dismissed. (C-M Beeson 1udk 1udk
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