THE QUEEN v. CHAN PING HUNG

MA No. 1070/89

HEADNOTE

Sentence - unwarranted departure from guideline - appeal - sentence increased to guideline figure.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1070 of 1989

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J U D G H E N T

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1. The appellant was convicted, on his plea of guilty, to a charge of remaining in Hong Kong without permission after having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance. He was arrested in the New Territories and admitted that it was his second time to commit this offence. In mitigation he merely said that life was hard in China where he was a farmer, and that he was the sole breadwinner of his family. The learned magistrate imposed a sentence of 12 months imprisonment.

The appellant appeals against that sentence. The magistrate in his Reasons for Sentence, recites that this was a second time offender, and acknowledged that there was nothing said in mitigation to differentiate this case from the many others coming before the court. He then went on as follows:

'Accordingly I directed myself in terms of the Court of Appeal decision in R V So Man King 494/88 which establishes a sentence of 15 months as appropriate. In the event however this defendant was sentenced to a sentence of only 12 months and it is against this sentence that he now appeals.

2. It is clear that the magistrate, being aware of the sentencing guideline, and appreciating that there was no ground to distinguish this case from the usual case, deliberately decided to imposed a sentence that, for no good reason, departed from the guideline. Such rogue sentencing would, not surprisingly,     cause a sense of grievance in other convicts who were sentenced in accordance with the guideline.

3. The appellant had been warned on the face of the notice of appeal that, on appeal, sentence might be increased. Accordingly I increase the sentence to 15 months imprisonment. I do not give discount, as the Court of Appeal does on an Attorney General's Review, as the matter comes before me not on an application by the Attorney General, but at the instance of the appellant.

4. Appeal allowed, sentence of 15 months imprisonment imposed.