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HCMA000006/1992
IN THE SUPREME COURT OF HONG KONG
APPELLATE JURISDICTION
MAGISTRACY APPEAL NO. 6 OF 1992
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THE QUEEN |
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CHAN WUN SANG |
Appellant |
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IN THE SUPREME COURT OF HONG KONG
APPELLATE JURISDICTION'
MAGISTRACY APPEAL NO. 52 OF 1992
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BETWEEN
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THE QUEEN |
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TAM KAM KEUNG |
Appellant |
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Coram: Hon. Sir Derek Cons, Ag. C.J., Kempster & Litton, JJ.A.
Date of hearing: 1 October 1992
Date of delivery of judgment: 9 October 1992
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J U D G M E N T
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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:
1. These two appeals against sentences imposed by Mr. M.C. Jenkins, sitting as principal magistrate in the North Kowloon Magistracy, have been reserved to this Court under s. 118(1)(d) of the Magistrates Ordinance, Cap. 227. In both cases the appellant pleaded guilty to one charge of using an identity card which related to another person, contrary to s. 7A(1A) of the Registration of Persons Ordinance, Cap. 177, and to one charge of remaining in Hong Kong without the authority of the Director of Immigration, having landed unlawfully, contrary to s. 38(1)(b) of the Immigration Ordinance, Cap., 115; and in both cases the appellant was sentenced to 18 months' imprisonment on each charge, the sentences to run concurrently.
2. The appellant in Appeal 6 of 1992, Mr. Chan Wun Sang, had been previously convicted in 1989 of using the identity card of another person and had been sentenced to 15 months' imprisonment; the appellant in Appeal 52 of 1992, Mr. Tam Kam Keung, had been previously convicted of remaining in Hong Kong etc. in February 1990, a sentence of 15 months passed by the magistrate being reduced to 9 months on appeal. The previous unlawful entries of the two appellants, revealed by these earlier convictions, were expressly reflected by Mr. Jenkins in the sentences that he passed in the present instances. Whether he was right to do so has been the main question canvassed in this Court.
3. The two sets of facts may be briefly set out. On 27th November 1991 Mr. Chan went to the Bank of Communications in Un Chau Street, Kowloon, to open a savings account. The teller became suspicious because the photograph on the identity card which he produced to support his application did not appear to match his features. The police were called and Mr. Chan admitted that he was an illegal immigrant and had purchased the identity card earlier in Shenzhen. In mitigation it was said on his behalf that he came to Hong Kong to earn money for medicine for his mother who was in hospital in China, dying of cancer.
4. Mr. Tam was stopped in the street on the evening of 29th December by a uniformed constable on patrol with the Emergency Unit, Kowloon. Checking by radio with the Regional Command revealed that the identity card Mr. Tam produced to the constable had been reported lost or stolen. Faced with that fact Mr. Tam admitted that he had sneaked into Hong Kong the previous day and had purchased the identity card from a man who was a stranger to him. In mitigation it was said on his behalf that he had a wife and three children in China and came here looking for work.
5. The two questions for our consideration, thus neatly summarised by Mr. Westbrook who appears for both appellants, may be put as:
"Given that the standard sentence for these offences is imprisonment for 15 months, then
(1) does the fact that the appellants have made a previous unlawful entry into Hong Kong; or
(2) do the circumstances in which they made use of another's identity card
justify an increase in that sentence?"
6. In R. v. So Man King and Others [1989] 1 HKLR 142, which set the standard sentence, we find at p. 145 this well known passage:
" The guideline already allows for the almost inevitable plea of guilty, but voluntary surrender to the authorities should warrant a substantial discount, and strong humanitarian considerations should always be honoured, even to the extent sometimes of suspending whatever prison sentence is otherwise thought appropriate. On the other hand, the Court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence, such as the actual use of a forged or other person's identity card to obtain some particular benefit."
7. The second of Mr. Westbrook's questions turns upon the words we have emphasized, and we note in passing, for the sake of the record, that it was an aspect upon which the learned magistrate did not rely.
8. Our attention has been drawn to the words of Barnes, J., in R v. Or Chun Ping and Others, Mag. App. 334 of 1991 unreported 1st August 1991, where the appellants before him had each, after coming here as illegal immigrants, obtained employment in a restaurant by using the identity card of another and then opened a bank account using in each case the same identity card:
" The authorities to which I have been referred make it clear that if the use of the identity card is merely for the purpose of representing that the holder has the right to reside here, then the appropriate sentence is 15 months imprisonment to be served concurrently with a similar term for the illegal immigrant offence. In this case I do not think that the further use of the identity card to open a bank account amounted to obtaining the type of benefit which the Court of Appeal had in mind as requiring an upward adjustment of the sentence."
9. The authorities referred to in the first sentence are not listed in the judgment, but we agree with the principle deduced therefrom by the learned judge. It is consistent with the comment at p. 144 in So Man King:
" It has to be acknowledged that there may be circumstances in which the use of such cards will be an aggravating feature, but in our view the authorities draw little, if any, distinction in the ordinary run of the mill cases. The substantial element in sentencing for all three offences is the unlawful presence in Hong Kong."
However we find ourselves unable to agree with the judge's application of that principle to the circumstances then before him. In our view the benefits obtained were precisely of the kind that this Court had in mind in So Man King. The answer to the second question posed in the present instance is therefore that the use to which Mr. Chan put the identity card in his possession would justify an increase in the standard sentence, but in the case of Mr. Tam it would not.
10. The first question turns upon the words "the court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not", together with the policy laid down by the Attorney General for the guidance of those actually charged with the responsibility for individual prosecutions. This provided that:
"any illegal immigrant from China discovered within the territory [would] be arrested and repatriated, but [would] not be prosecuted before repatriation unless he or she
(1) [was] to be charged at the same time with some other offence, e.g. possession of a forged identity card;
(2) [had] entered Hong Kong on an earlier occasion and been repatriated;
(3) [was] one of three or more immigrants found on a construction site or other place of employment such as a factory, restaurant or farm; or
(4) [was] one of an organised group, whether that group [were] self-organised or organised by a third party.": see A.G. v. Ng Kin Hung [1991] 1 HKLR 81.
11. In November 1990 the policy was apparently amended to exclude the second head. That factor led Barnes, J., again in Or Chun Ping, to depart from the guideline in question. He said:
"... The enhanced sentences imposed by the Learned Magistrate were imposed according to his Reasons for Sentence, because he was of the view that he was obliged 'to make allowances for their previous convictions'.
Whilst the Magistrate's approach in doing that was consistent with So Man King, it is not an approach which should be followed now that the policy with regard to multiple evaders has changed. Accordingly, I agree with Mr. Lee that it is unfair to impose a higher sentence simply because a person convicted of an illegal immigrant offence has been here before unlawfully."
12. Hooper, J., followed suit in R. v. Lam Chi Wah Mag. App. 949 of 1991 unreported 27th January 1992, upon the concession of counsel then appearing for the Crown, although he expressed himself to be "not entirely happy". However Mayo, J., in R v. Lee Yuen Shing, Mag. App. 154 of 1992 unreported 13th May 1992, took a contrary view:
"The fact that the Crown may decide as a matter of expediency not to prosecute illegal immigrants seems to me to be a separate and distinct issue." With the addition perhaps of the word "particular" before the words "illegal immigrants", we would respectfully adopt that as a correct assessment of the situation.
13. Mr. Westbrook concedes that it is normal sentencing practice to take into consideration the fact that a defendant has been guilty of similar conduct previously, but suggests that in the particular circumstances we are considering it would be unfair to do so; that the court should not ignore the stated policy of the executive, which indicates that the executive no longer considers prosecutions of this kind to have any deterrent value; and that unless the authorities continue to keep accurate records, which would seem unlikely in view of the changed prosecution policy, it would introduce an undesirable element of luck.
14. With every respect, the attitude of the executive, which might well depend upon reasons not apparent to this Court, is irrelevant. Once the legislature has decided that particular conduct shall be criminal it is the duty of the courts to enforce that law by passing appropriate sentences upon those who plead or are found guilty of that particular conduct. In so doing the courts will apply normal and well established principles of sentencing to the particular facts of which they are seized. There is no justification to depart from those principles merely because, in a particular field, the Attorney General, in whom the discretion to prosecute exclusively lies, has adopted a selective policy; or because the absence of proper records might lead, in some cases, to a lesser sentence than that properly deserved. In our view the learned magistrate adopted the correct approach. The answer to Mr. Westbrook's first question is in the affirmative.
15. For these reasons both appeals must be dismissed.
| (Sir Derek Cons) |
(M.E.I. Kempster) |
(H. Litton) |
| Acting Chief Justice |
Justice of Appeal |
Justice of Appeal |
Representation:
A.P. Duckett, Q.C., and Kwok Wing Lung, Crown Prosecutor for the respondent
| Simon Westbrook |
assigned by DLA for Chan Wun Sang/appellant |
| assigned by DLA for Tam Kam Keung/appellant |
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