THE QUEEN v. WONG WAI HING

1988, No. 1058

1988, No. 1062

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H E A D N O T E

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Sentence - illegal immigrants remaining without authority - group of less than three government policy not to prosecute if first visit and no other offence committed - over two months in custody - sentence reduced to allow immediate release.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL

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J U D G M E N T

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1. The appellants pleaded guilty, before Mr Crawshaw at South Kowloon Magistracy. to remaining in Hong Kong without the authority of the Director of immigration, after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap, 115, and were sentenced to 15 months imprisonment.

2. This sentence is in accordance with the guideline laid down in R, v, So Man King and Other M.A.408/88, What distinguishes these appeals is that the appellants, although both were arrested in construction sites, were not members of a group of three or more such persons.

3. It has since May, although only published in August, at the hearing of So Man King, been Government policy only to prosecute illegal immigrants, who have not committed other offences and whose first visit to Hong Kong it is, if found at their place of employment in a group of at least three. LEE Yan-bi was found with one other person at a construction site on l7th August; WONG Wai-hing was arrested in the same circumstances on 25th August,

4. Counsel for the respondent assures me that there has been no further refinement of Government policy towards illegal immigrants and is unable to explain why these appellants have been prosecuted. Thus, although they are in clear breach of the ordinance, they may consider themselves unfortunate to be in prison, rather than back in China. As they have been in custody since their arrest, I consider. it only right that they should now be released.

5. The appeals are allowed and the sentences reduced to such terms as will allow their immediate release.