HKSAR v. CHAN YING KIT

HCMA 611/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 611 OF 1999

(ON APPEAL FROM SKCC NO.1526/1999)

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J U D G M E N T

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1. The Appellant pleaded guilty to two charges before Mr Andrew Ma in South Kowloon Magistracy. The first charge is for possession of a forged identity card, for which he was sentenced to eight months' imprisonment and the second, to remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, for which he was sentenced to 15 months' imprisonment, 12 of which were ordered to be served consecutively to the sentence on the first charge, making a total of 20 months. He now appeals against conviction under s.113 of the Magistrate's Ordinance notwithstanding his pleas of guilty before the Magistrate.

2. In support of his appeal, he has filed an affirmation in which he said that he arrived in Hong Kong from Mainland China on 30 October 1997 on a two-way permit. He was given permission to remain in Hong Kong until 11 November 1997. Thereafter, he remained in Hong Kong as an overstayer until he was arrested by the police on 29 May 1999.

3. The two-way permit, together with a PRC identity card in the name of the Appellant, have been produced before me. Mr Wong for the prosecution informed me that these two documents were submitted to the Government Chemist and the result is that the Government Chemist is of the opinion that they have not been forged or tampered with. Mr Wong therefore does not dispute the authenticity of these documents even though the prosecution has not verified with the PRC authorities about the authenticity of these documents.

4. Each of the documents bears a photograph of the holder which, by comparing them with the appearance of the Appellant before me, I am satisfied were documents which were issued to the Appellant. In his affidavit, the Appellant said that when he was arrested by the police on 29 May 1999, he did not have these two documents with him because he had sent them back to his family in China for safekeeping. Because he did not have these documents with him, he was afraid that he would be disbelieved if he were to tell the police the truth about his presence in Hong Kong. Further, he was not aware that an overstayer would be charged with an offence different from someone who had sneaked into Hong Kong illegally. He stated that he genuinely believed that as he had overstayed his permission to remain in Hong Kong, he was "illegally remaining" in Hong Kong and that it made no difference whether he had entered Hong Kong lawfully or not. He therefore told the police that he had sneaked into Hong Kong by boat on 25 May 1999.

5. When he appeared in court, even though he was represented by lawyer assigned by the Duty Lawyer Scheme, he only had a five-minute interview with the lawyer. During the interview with the lawyer on 1 June 1999, he was asked if he understood the two charges preferred against him. He replied that he did because he did not fully appreciate the nature of the second charge, and in particular he was not aware of the differences between the offence of "illegally remaining in Hong Kong" and "breach of condition of stay". In particular he did not notice, and he was unaware, that an unlawful entry into Hong Kong was an essential ingredient of the charge of unlawfully remaining.

6. Mr Chan for the Appellant, has relied on the same legal ground that he relied upon in HKSAR v. Law Kin Ping, HCMA No. 839/1999. I am satisfied that this Appellant was not aware that for the second charge which was preferred against him, an ingredient of that offence was that he had landed in Hong Kong unlawfully. I am satisfied that he was not aware that the two offences were in fact quite different, and that as a matter of practice, the sentence on the overstaying charge would normally be less than that on unlawful remaining in Hong Kong.

7. He has a previous conviction in March 1996 when he was charged with two similar offences and was sentenced to 15 months on each charge, to be served concurrently. In pointing out the previous conviction when the Appellant was sentenced to 15 months' imprisonment, Mr Chan actually fortifies his submission to me that the Appellant was unaware that an overstayer would normally receive a sentence less than 15 months in the courts of Hong Kong.

8. For the reasons which I gave in the other appeal, in this appeal I also rule that despite the plea of guilty, the plea tendered by the Appellant on the second charge was a nullity. It is a nullity because he was not aware that an ingredient of the charge that he pleaded guilty to was that he had landed unlawfully in Hong Kong. It is a nullity because on the finding of facts made by me, he had not landed unlawfully in Hong Kong, but had entered Hong Kong lawfully and thereafter breached his condition of stay.

9. I therefore allow the appeal. The conviction and sentence on the second charge is hereby quashed. In substitution therefor I enter a conviction, under s.41 of the Immigration Ordinance, for breach of condition of stay. He was allowed to remain in Hong Kong until 11 November 1997, and up to the date of his arrest on 29 May 1999 he had overstayed by about 1 1/2 years. He has a bad left leg which results in his having to limp. He has a heart condition for which regular medication is necessary. He has an aged mother and a one year old daughter. He has been in custody since 29 May 1999. The sentence that I impose for the second substituted charge is one of three months' imprisonment. I will make part of that three-month sentence consecutive to the sentence on the first charge of eight months against which there is no appeal, and a part of that three-month sentence concurrent with the eight-month sentence, the result of the partly consecutive and partly concurrent sentence from the second charge is such that it should result in the Appellant's immediate release. This is having regard to the fact that he has been in custody since 29 May 1999, which means that he is six days short of serving seven months of his sentence which on Mr Chan's calculation is equivalent to roughly, with remission for good conduct, a sentence of 10 1/2 months. So the appeal is allowed to that extent.