THE QUEEN v. CHEUNG WOON-SANG

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 777 OF 1989

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BETWEEN

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JUDGMENT

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1. The appellant pleaded guilty to remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong and was sentenced to 12 months' imprisonment.

2. The agreed facts stated that the appellant entered Hong Kong illegally from China on 22nd May, 1989. The next day he surrendered himself to the Police in Yuen Long for being an illegal immigrant. Record check confirmed that the appellant had previously sneaked into Hong Kong from China on 12th July, 1986 and was removed to China on 13th August, 1986.

3. The magistrate in his Reasons for Sentence stated :

" There was no question of surrender to the authorities, or of strong humanitarian grounds for reduction or suspension of the sentence. However the appellant said that he had a withered leg for which he had to have injections twice a week. I considered that this ground albeit rather weak, justified a small reduction in sentence and accordingly he was sentenced to 12 months' imprisonment. "

4. In The Queen and SG Man-king, Magistracy Appeal No. 408 of 1988, (Court of Appeal), Cons, Ag C.J. said :

" 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. "

5. The magistrate said there was no question of the appellant having surrendered to the authorities whereas the agreed facts clearly stated he did.

6. In the circumstances of this case in particular having regard to his surrender the day after his arrival and his withered leg, I think the sentence is manifestly excessive and I allow the appeal to the extent of reducing the sentence to one of 6 months.