R. v. WONG MAN KIT and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.180 OF 1997

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J U D G M E N T

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1. The 1^st appellant pleaded guilty to one count of possession of offensive weapon; one count of remaining unlawfully in Hong Kong and to one count of possession of wrist restraint, that is to say, plastic handcuffs. For these offences, he was sentenced to three months, 15 months, and three months imprisonment respectively, all sentences to run consecutively. The 2^nd appellant pleaded guilty to one count of remaining unlawfully in Hong Kong for which he was sentenced to 18 months imprisonment. They now apply for extension of time to appeal against sentence.

2. The facts are straightforward. The two appellants together with two other persons were found in a private car when the police stopped them. They were the passengers in the rear seat. The weapon which was a knife and the plastic wrist restraint were found under the driver seat. The two appellants were illegal immigrants from China.

3. The learned magistrate sentenced the 2^nd appellant to 18 months for the reason that this was the second time he came to Hong Kong, he having come here on a previous occasion and committed an offence of theft. The 1^st appellant also came on a previous occasion and was convicted of burglary for which he was sentenced to three years' imprisonment. However, the learned magistrate imposed a sentence of 15 months in respect of the immigration offence. In his Reasons for Sentence, he said he had second thoughts about the order he made with regard to the consecutive sentences. He seemed to say that he thought the three months' sentence in respect of the possession of offensive weapon and another three months for the possession of wrist restraint should be ordered to run concurrently. I am given to understand that the 1st appellant in fact had committed an earlier offence and been sentenced to imprisonment.

4. In my view, the 15 months' imprisonment was a policy decision which was aimed at deterring illegal immigrants from coming to Hong Kong. The authorities seem to suggest that illegal immigrants who had been to Hong Kong once and had committed offences other than immigration offences would receive a heavier sentence if they come again. It is quite clear that both appellants come within the category of a second timer. Hence, the sentence for the immigration offence should have been 18 months for both appellants as I can see no distinction between them. The 1st appellant should have received 18 months for the immigration offence. But the sentences of 3 months each for the 2 possession charges should have run concurrently. However, since they were separate from the immigration offence, it is right that these sentences should be concesutive to the sentence for the eimmigration offence. While the reasoning behind his order that all sentences should run consecutively may not have been very sound, I do not think that the totality of 21 months for the appellant is in any way manifestly excessive or wrong in principle. In the circumstances, I would refuse leave to the 1^st appellant for extension of time.

5. The appeal against sentence in respect of the 2^nd appellant is based mainly on the footing that if I reduce the 1^st appellant's sentences, then he may have a sense of grievance because he is charged with only one offence whereas the 1^st appellant was charged with three offences.

6. Having refused application for the 1^st appellant, I see no reason to justify reducing the sentence of the 2^nd appellant. His application is also refused.