HKSAR v. CHUNG SHI NOG AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 798 OF 1998

(On Appeal from FLC 1262 of 1998)

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J U D G M E N T

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1. Each of these two Appellants pleaded guilty to a charge of remaining in Hong Kong without the authority of the Director of Immigration. Each was alleged that on 25th June 1998 at Sha Tau Kok, New Territories, had landed in Hong Kong and remained in Hong Kong unlawfully. They disputed the facts put forward by the prosecution and the learned magistrate Ms. A.M. Thomson embarked upon a Newton enquiry.

2. PW1 gave evidence. He at the material time was a police officer posed as a customer in the restaurant in Sha Tau Kok. The 2nd Appellant had provided him with tea as soon as PW1 took a seat and returned shortly afterwards to take his order for food. In the ensuing half an hour's time, PW1 observed both Appellants separately give tea to customers on their arrival and cleaned up tables after they had left.

3. Both Appellants gave evidence. The gist of the 1st Appellant's explanation was she was a farmer, she claimed to have gone to the restaurant to deliver vegetables on behalf of her sister. She slipped causing crockery to fall to the floor and had only been cleaning of the dishes before her arrest. The 2nd Appellant also gave evidence to the effect that she lived in the Sha Tau Kok area. She was in the restaurant waiting for a friend of her son who was to post a letter to her son in Hong Kong, incidental to that she was also there to make a phone call.

4. That issue before the learned magistrate was a simple one. The account given by PW1 and the account given by the two Appellants were diametrically opposed to one another. The acceptance of one must lead to the exclusion of the other. I note both on their own accounts were quite unable to explain the half hour's time that they were seen in the restaurant. So the learned magistrate came to the conclusion that they were there working and they were sentenced on that basis.

5. The duty lawyer who was acting on behalf of these two Appellants had advanced to court very substantial mitigating factors, setting out fully the mitigating circumstances. The learned magistrate had also sentenced them with the benefit of the mitigating factors in mind and I quote from the reasons for sentence:

"While the defendants' poverty and separation from their families aroused sympathy, there was nothing so special in the circumstances of either one of them that justified departure from the guidelines given in So Man King Mag. App. No. 408/98."

So the both Appellants were sentenced to 15 months' imprisonment.

6. Today, they are not seeking to criticise the reasons imposed on their sentence. I have myself compared the reasons now contained in their grounds of appeal with the reasons that have been advanced by the then duty lawyer acting on their behalf, they are substantially the same. In these circumstances, I cannot really say that there is now new materials before me to have the matter reconsidered. The learned magistrate had sympathies with the poverty and separation from their family but these are not sufficient. I have no alternative but to dismiss the appeal.