THE QUEEN v. TSE WING KWAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 835 of 1990

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BETWEEN

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JUDGMENT

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1. The appellant pleaded guilty before Mr. White in central Magistrates Court to remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.   He now appeals against the sentence of 15 months imprisonment, which the magistrate imposed in the absence of mitigating factors.

2. Although the appellant told the magistrate that it was the first time he had sneaked into Hong Kong, the brief facts that were read to the court did not make it clear that it was the appellant's first illegal entry.    He is a fisherman and had come to Hong Kong legally in his fishing boat four months earlier.   He had been arrested on his departure for attempting to export unmanifested TV sets and subsequently convicted of that offence.

3. In April it was decided by Government to prosecute - rather then simply return to China - yet another category of illegal immigrants, namely those with a Hong Kong conviction.   The appellant arrived in May and was caught by the new policy of which he was unaware.

4. He may thus consider himself rather unfortunate, but he cannot really complain, since his admitted intention in coming to Hong Kong was to seek work.

5. I do not understand why this appeal has taken so long to be listed.   The appellant is legally aided, but counsel was instructed only in Mid-December.   The appellant is due to be released - assuming full remission - in less than three months time.

6. For this reason, plus the fact that the appellant may have been lulled into a false sense of security in the expectation of repatriation if caught, I am prepared to take a lenient view.

7. The appeal is allowed and a sentence that will permit his immediate release is substituted for the 15 months sentence.