HKSAR v. WONG LIN PAN

CACC 528/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 528 OF 2001

(ON APPEAL FROM HCCC 293 OF 2001)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 14 November 2001, the Applicant (D3 in the court below) pleaded guilty before Pang J to a single charge of robbery for which he received a sentence of five years and eight months' imprisonment. He now seeks leave out of time to appeal against sentence.

2. The facts of the case appear in the judgment relating to HKSAR v Shek Tsz-yuk (D1) and Wong Shing (D2), CACC 528/2001 which was consolidated with CACC 491/2001. It suffices to say that at the conclusion of the appeal in CACC 528/2001 we reduced by a year the sentences imposed on D1 and D2. We went on to observe that D3 (the Applicant) should be notified of the decision "with a view to encouraging him to make a late application". Nothing in that case distinguished D3 from his co-defendants.

3. In fairness to the judge who passed sentence, perhaps all that we need to say is that he appeared to have taken into account, as an aggravating factor, the Applicant's status as an unlawful entrant from the Mainland who had come to Hong Kong for the sole purpose of committing crime when, unbeknown to him, the prosecution had commenced proceedings for an immigration offence in the Magistrates' Court. In the result, at the conclusion of proceedings in the Court of First Instance, the Applicant was given a consecutive sentence of fifteen months' imprisonment in the Magistrates' Court for remaining in Hong Kong without the authority of the Director of Immigration. This, in the particular circumstances of the case, appeared to have amounted, as we expressed it in CACC 528/2001, to a "double punishment".

4. Accordingly, we shall grant leave out of time and, treating the hearing as the appeal, we reduce the Applicant's sentence by one year, leaving four years and eight months' imprisonment to be served on this indictment. This does not affect the sentence imposed in the Magistrates' Court which was rightly ordered to run consecutively.

5. We expressed the "earnest hope" in paragraph 16 of the judgment in the consolidated appeals CACC 528/2001 and CACC 491/2001 that in future cases, where further proceedings are yet to take place in the Magistrates' Court, the prosecution would make it their duty to inform the judge in the Court of First Instance of the position to avoid future instances of unlawful entrants being punished twice over for an element of the offence which may be perceived as involving the same or similar criminality. We are grateful to Mr William Tam, who appeared on behalf of the Respondent, for pointing out that the Respondent has now dealt with the problem by issuing a memorandum which will be given to all prosecutors in similar cases involving unlawful entrants reminding them to inform the judge of any outstanding proceedings to be taken in the Magistrates' Court for an immigration offence. In this light, it is to be hoped that there will be no recurrence of the problem which has arisen in this appeal.