THE QUEEN v. YIP YUK CHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 469 OF 1987

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IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 439 OF 1987

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BETWEEN

THE QUEEN

and

CHAN Siu-ming

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J U D G M E N T

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1. These two appeals came before me on 20th July, this year when I acceded to an application by Counsel for the appellants, which was supported by Counsel for the Crown, to adjourn the matter until this morning pending reports from a probation officer and the Commissioner of Correctional Services. These reports are now to hand and I have considered them.

2. Both appellants pleaded guilty before different magistrates to the offence of using Hong Kong identity cards relating to other persons. Chan Siu-ming, the appellant in Magistracy Appeal No. 439 of 1987, was sentenced to 9 months imprisonment by Mr. Jenkins. In departing from the normal sentence of 15 months imprisonment, the learned magistrate took into account as a special factor that the appellant was only 17 years of age. In the charge sheet his age was stated to be 21, but he told the learned magistrate in mitigation that he was only 17 and the learned magistrate gave him the benefit of the doubt and sentenced him on the basis that he was 17. The facts in this case were that the appellant was seen by police officers on the ground floor of Block 22, Sau Mau Ping Estate and when he saw the police officers, he accelerated his pace and turned abruptly into the middle staircase landing where he was intercepted. He produced an identity card which was not his own and on being questioned the appellant admitted that he sneaked into Hong Kong four days ago and the identity card was purchased in Shum Chun for 500 Reminbi.

3. YIP Yuk-ching, a 19 year-old female and the appellant in Magistracy Appeal No. 469, was sentenced to 12 months imprisonment by Miss Cannon. Again, the learned magistrate allowed a discount of three months on account of the age of the appellant although she found no strong humanitarian considerations. The facts were that the appellant was arrested by police officers who carried out an anti-illegal immigration operation at a restaurant in Shatin, where she was working as a cashier. On being questioned, she admitted that she was an illegal immigrant and she obtained the job by using an identity card in the name of LUI Yuen-man, Tammy which she picked up in Shum Chun.

4. In passing sentences, both magistrates had in mind the decision of the Court of Appeal in The Queen v. Lau Chung-kwan, Magistracy Appeal 796 of 1986 and section 109A of the Criminal Procedure Ordinance, Cap. 221. Both Mr. Jenkins and Miss Cannon considered that probation would not be appropriate while detention and training centres were not designed or intended for the present situation. Their views are now confirmed by the probation officer and the Commissioner of Correctional Services. I need just read from the report of Mr. Rutton which says:

“The Detention Centre authority deems it essential to work with responsible family members in bringing about the desired rehabilitative effects during and after the detention period. Therefore, the Detention Centre programme is inappropriate for homeless offenders. By the same token, the abovenamed is not recommended for admission to the Detention Centre.

Background investigation has confirmed that the abovenamed is a Chinese illegal immigrant due for repatriation to China. As such, it is impractical to administer to him the three-year statutory after-care supervision which is part and parcel of the Training Centre Programme. Were he admitted to the Training Centre, the programme process would be truncated by the foregone absence of statutory aftercare supervision because of his due repatriation upon release.”

5. Mr. Hurray for the appellants submitted to me that it was wrong in principle to pass sentences on young persons in this type of cases before calling for background reports under section 109A because it was only from these reports that magistrates would be placed in a better position to find out if humanitarian considerations existed. Mr. Murray also asked me to tell magistrates that in cases of this type coming before them .in future background reports should be called for.

"SECTION 109A provides:

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by the Third Schedule.”

6. The important and operative words of the section are "for the purpose of determining whether any other method of dealing with such a person is appropriate the court shall obtain and consider etc.". It must be borne in mind that what the section says is in determining whether my other method of dealing with any such person is appropriate, it does not say in determining the length of a sentence of imprisonment the court shall obtain and consider etc. It may be theoretically desirable to have the information before sentence but after all the options having been examined on a practical basis, one finds at the end that such an exercise bears no relation to reality and is purely of academic interest. Probation, detention in Detention and Training Centres are out of the question and fines and binding-over orders to be of good behaviour are also clearly inappropriate and I cannot think of any other form of punishment to deal with young illegal immigrants apart from a sentence of immediate imprisonment. Regulation 12(3) of the Registration of Persons Regulations made under section 7 of the Registration of Persons Ordinance, Cap 177 was enacted, I believe, at a time when we were constantly confronted and are still confronted with the ex-plexed problem as mass influx of people from across the border and the sole purpose of this regulation was and still is to curb illegal immigration. Reports from probation officers or the Commissioner of Correctional Services would not be of assistance to the court in deciding whether there are other methods to deal with young illegal immigrants where, by the very nature of the offence, sentences of imprisonment are inevitable. I am, therefore, of the opinion that it is not obligatory upon magistrates to call for back-ground reports before sentencing young illegal immigrants. But where magistrates are minded to call for such reports, they are of course free to do so. The objects of all illegal immigrants are alike: they come here either to join relatives or with the hope of a better living. The intention of the legislature is equally clear: the sentence of imprisonment is meant to be a deterrent in addition to repatriation. It must not be overlooked, however, among the many illegal immigrants who have come, a large number of them were young persons in the age group of 16 to 21. If these people are to be dealt with differently, the object of the legislation will certainly be defeated.

7. In the present appeals, the magistrates had considered the age of the two appellants and made appropriate adjustments in the sentences imposed on them. In fact they are quite fortunate in a way because there is no reason why they should not get 15 months.

8. In passing, I would just make one observation. It would be of assistance to magistrates if the prosecution can compile and submit to magistrates before and for the purposes of sentencing background and antecedent statements with as much details as they are able to gather.

9. With these remarks, I would dismiss both appeals.