HKSAR v. MAK KIN YU
- Citation
- HKSAR v. MAK KIN YU
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 2 March 1999
- Posture
- Magistracy Appeal (appellate Jurisdiction) / Appeal Against Sentence Judgment
- Case number
- HCMA43/1999
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 2 March 1999
- Posture
- Magistracy Appeal (appellate Jurisdiction) / Appeal Against Sentence Judgment
- Case number
- HCMA43/1999
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Magistrate properly weighed mitigation (clear record and guilty plea) but reasonably concluded the appellant's circumstances were not exceptional compared with others in similar situations; applying R v Lau Chung kwan guidelines, the 15 months imprisonment sentence was within lawful and appropriate bounds, so the appeal is dismissed.
Court disposition
Appeal dismissed; sentence of 15 months imprisonment upheld.
Orders
- Appeal dismissed and the sentence of 15 months imprisonment confirmed.
02
Material facts
Parties
HKSAR
Respondent Counsel: Mr William Lam, SGC of DPPMAK KIN YU
Appellant Counsel: Appellant in personAmounts and remedies
- Sentence Months: 15
03
Procedural history
Posture
Magistracy Appeal (appellate Jurisdiction) / Appeal Against Sentence Judgment
04
Questions and positions
Legal issues
- 01
Whether the 15 months imprisonment sentence was excessive
- 02
Whether the appellant's personal mitigation (family illness, clear record, plea) justified departure from usual sentences
- 03
Whether the Magistrate properly applied R v Lau Chung kwan guidance
Party arguments
- Applicant
- Appellant pleaded guilty, had a clear record and presented mitigation: came to Hong Kong seeking work to pay for brother's medical expenses; since incarceration mother fell into a coma and is paralysed; sought leniency and reduction of sentence.
- Respondent
- Prosecution maintained the appellant's personal circumstances were common to many mainland entrants seeking work and did not justify departure from usual sentences; the Magistrate applied the guidance in R v Lau Chung kwan and the 15 months sentence was appropriate.
05
Court’s reasoning
Legal principles
- 01
Magistrate's Reasons and affirmed by High Court judgment
Personal mitigation and sympathy are relevant but do not justify a reduced sentence where circumstances are not exceptional compared with ordinary cases
- 02
R v Lau Chung kwan [1987] HKLR 203
Sentencing must follow established guidelines in relevant case law, including R v Lau Chung kwan [1987] HKLR 203
06
Ratio, limits and disposition
Ratio decidendi
The Magistrate properly weighed mitigation (clear record and guilty plea) but reasonably concluded the appellant's circumstances were not exceptional compared with others in similar situations; applying R v Lau Chung kwan guidelines, the 15 months imprisonment sentence was within lawful and appropriate bounds, so the appeal is dismissed.
Obiter and limits
- Court expressed sympathy for the appellant's personal difficulties but stated sympathy alone does not justify departing from usual sentences.
- Reference to R v Lau Chung kwan was appropriate as a sentencing guideline in these types of offences.
Court disposition
Appeal dismissed; sentence of 15 months imprisonment upheld.
- Appeal dismissed and the sentence of 15 months imprisonment confirmed.
Source and reliance status
Court of First Instance · 2 March 1999
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· 2 March 1999
bjbj HCMA43/99
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 43 OF 1999 ---------------
BETWEEN HKSAR Respondent and MAK KIN YU Appellant --------------- Coram : Hon Woo J. in Court Date of hearing : 2 March 1999 Date of judgment : 2 March 1999 ------------------------
J U D G M E N T ------------------------ The Appellant pleaded guilty to being possession of an identity card relating to another person, contrary to s.7A(1A) of the Registration of Persons Ordinance, Cap.177. She was sentenced to 15 months imprisonment. She now appeals against that sentence. In mitigation before the Magistrate, she told him that she had come to Hong Kong to look for work to earn money for medical expenses as her brother was ill. She tells me here that since incarceration, her mother, knowing it, had a coma and is now suffering from paralysis. Similar circumstances had been mentioned to the Magistrate. In sentencing the Appellant, the Magistrate had regard to her clear record and her plea of guilty. In his Reasons for Sentence, the Magistrate said ...While I have sympathy for her personal circumstances, they were no different than most persons who come from the Mainland looking for work, and accordingly did not provide a basis to depart for (sic) the usual sentences. I agree with him. The Magistrate also referred to the case of R v Lau Chung kwan [1987] HKLR 203 and he had regard to that case and the guidelines in it in passing the 15 months imprisonment sentence. I do not find that the Magistrate s approach was wrong or the sentence excessive. I therefore dismiss the appeal. (K.H. Woo) Judge of the Court of First Instance High Court Mr William Lam, SGC of DPP, for HKSAR Appellant in person, present -
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