THE QUEEN v. CHEUNG WING CHEONG

MAG. APP. NO 1223 OF 1989

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HEADNOTE

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IN AN APPEAL AGAINST SENTENCE THE COURT SHOULD NOT INTERFERE WITH A PROPER SENTENCE BECAUSE THE CROWN CONCEDES THAT THE PROSECUTION SHOULD NOT HAVE BEEN BROUGHT.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1223 OF 1989

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JUDGMENT

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1. This was an appeal against a sentence of 15 months for an offence of remaining in Hong Kong without the authority of the Director of Immigration.

2. The appeal had, to this point, taken an unusual course in that when the appellant first appeared before Mr. Justice Wong, he had remitted the matter back to the magistrate to hear evidence and to make findings as to whether the appellant had been arrested on a construction site in a group of three or more persons who were illegal immigrants. This had to do with prosecution policy in relation to illegal immigrants, it being then the policy that an illegal immigrant would not be prosecuted unless he was found on a construction site in a group of three or more illegal immigrants.

3. Mr. Justice Wong, was acting in accordance with his own findings in Magistracy Criminal Appeal No. 1595 of 1988 R. v. Chu Tai-ming.  In that appeal he followed the decision of Bewley, J. in R. v. Lee Yan-bi and Wong Wai-hing, Magistracy Appeals No. 1058 and 1062 of 1988, and the decision of Barnes, J. in R. v. Yang Lap-man, Magistracy Appeal No. 1231 of 1988, in allowing the appeals against sentence and reducing the sentences because the prosecution had not been in accordance with the then known prosecution policy. It was also in line with the decision of Mr. Justice de Basto, in R. v. Wong Yi-ming, Magistracy Appeal No. 753 of 1989 in which a sentence of 15 months was set aside altogether because the prosecution had not been in line with what he was told was current prosecution policy.

4. I am told that in all these cases the Crown conceded (as they were ready to do in this case) that the prosecution had not followed its then known policy, and that therefore the sentences were excessive or should never have been passed.

5. Mr Simon Chiu who appeared for the appellant in this appeal urged me to follow those decisions, allow this appeal against sentence and set the appellant free immediately. With great respect I cannot see how questions of prosecution policy have any bearing on sentence. A sentencing court is entitled to assume, in the absence of an application for stay on the grounds of an abuse of process, that the charges are brought in all good faith by the Attorney General, who has exercised a proper discretion in favour of prosecution. No such application was before this magistrate and the sentence he passed was in line with sentencing norms for these offences. There is, so far as I am aware, no special mitigating factor involved to suggest that I should interfere with this sentence.

6. If the Crown initially confused by the vagaries of its own policy in relation to illegal immigrants is now having second thoughts about bringing this prosecution at all, that is a matter the Crown should deal with in the time-honoured way of inviting executive intervention, and not by asking this court to use the occasion of an appeal against sentence to undo or lessen the harm done by the prosecution by securing an immediate or early release. If an injustice has been done it is the conviction that should be quashed, and this Court has no jurisdiction to quash a conviction when hearing an appeal against sentence, and certainly not where there has been no application to withdraw the plea of guilty entered and recorded by the learned Magistrate. Indeed had the appeal been against conviction it would not in my view be a proper ground for allowing the appeal, if the conviction was in all other respects a proper one, that the Crown had belatedly decided it should not have brought the prosecution in the first place.

7. This appeal is dismissed.