THE QUEEN v. WONG HOI MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1099 of 1995

------------------------

----------------------

---------------------

J U D G M E N T

---------------------

1. The appellant was convicted on 30th October 1995 of possession of an identity card relating to another person and of a second count of remaining in Hong Kong without the authority of the Director of Immigration. He was sentenced to a period of 15 months' imprisonment on each charge, to be served concurrently.

2. The facts upon which the appellant was convicted were that on 27th October 1995 police on patrol near Prince Edward MTR Station saw the appellant and requested him to produce his identity card for inspection. He produced a card which, on checking through the police console, was found to belong to a person other than the appellant. Enquiries were of him and the appellant admitted to the police that he was an illegal immigrant. He was arrested and taken back to the police station. Under caution, he admitted that he had paid RMB4,000 to buy the identity card in Shenzhen and has sneaked into Hong Kong on 24th October 1995, i.e. two days before his arrest, to look for a job.

3. When he came before the Magistrate, the charges were read and explained to him and he entered a plea of guilty to each charge. He was represented by counsel from the Duty Lawyer Scheme.

4. After he had entered his plea, the facts were read and explained to the appellant in Cantonese. The appellant agreed that the facts were correct. The learned Magistrate went on to sentence the appellant in the terms of the case of R. v. So Man King, to 15 months' imprisonment in respect of each charge.

5. On coming before me, the appellant raised two grounds of appeal. Firstly, the health of his father, as a strong humanitarian ground justifying a departure from the normal tariff sentence. He placed before me medical certificates showing that in August 1995 his father suffered a hematoma to the surface of the brain which required an operation and subsequently he was found to have coronary problems. It is clear from the timing of these certificates that the appellant ought to have known of the condition of his father in August.

6. The second ground of appeal was that the appellant produced before me a two-way permit issued by the People's Public of China and stamped upon entry into Hong Kong by the Immigration Department on 13th May 1993, permitting him to remain in the Territory until 31st July 1993. In an affirmation before me, he claimed that he came to Hong Kong on 13th May 1993 and has remained here in contravention of his condition of stay since that date. He affirmed that on his arrest by police officers he was in fear that his previous criminal record, being a breach of condition of stay in 1991 when he was sentenced to a total of 8 months' imprisonment, might be raised. Therefore when he was put before the Magistrate on 30th October 1995, he pleaded guilty to the two offences and admitted the fact that he was an illegal immigrant and admitted that he had entered Hong Kong illegally on 24th October 1995. He now says that they were lies and on that basis and the production of the permit, seeks a reduction in his sentence.

7. The first matter that I must make clear is that this is an appeal against sentence and not an appeal against conviction. The appellant has not sought to appeal his conviction and indeed is barred from doing so by s.113 of the Magistrates Ordinance. I therefore do not address my mind to the question of his conviction but address myself solely as to the sentence which has been passed upon him.

8. The situation is that the appellant unequivocally agreed a set of facts upon his plea in the Magistrate's Court. Those facts were clear and related solely to the charges which he faced in that court. The learned Magistrate, having considered the authorities and the facts, passed a perfectly proper sentence of 15 months' imprisonment concurrently on each charge. I must now consider whether in the light of what the appellant has produced before me, I ought to disturb that sentence.

9. I take it and Counsel have agreed with me that it is for the appellant to prove, on the balance of probabilities, that the circumstances differ from those which he agreed in the Magistrate's Court. I have his affirmation and I have the permit. I am not satisfied on the balance of probabilities that the circumstances are different. On the face of the book there is stamp from the Immigration Department that has not been sought to be verified in any way. I have before me two versions stated by the appellant and I am not in a position to say that the more recent version is more likely to be true than the one admitted immediately to the police upon his arrest and verified by him to the Magistrate in court.

10. I have considered the question of humanitarian grounds. If he came on 24th October 1995, then his father was seriously ill before he came and that cannot help him. If he remained here since 1993, and he tells me through his counsel that he did not know his father's condition until after his arrest, then he certainly had made no efforts to keep in touch with father in the months between early August 1995 when his father had his first operation and a period after his arrest in October when his family finally sent him these documents to assist him in his appeal. I do not consider that there are humanitarian grounds which I should take into account. The appeal against sentence is dismissed.