THE QUEEN v. FUNG KIN-FAI AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate jurisdiction)

MAGISTRACY APPEAL NO. 558 OF 1989

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BETWEEN

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J U D G M E N T

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1. This is an appeal against sentence by four appellants who were charged with possession of offensive weapons (two folding knives) in a public place under s. 33(1) of the Public Order Ordinance Cap. 245. After trial, they were found guilty and they were each sentenced to 14 months' imprisonment.

2. The youngest of the four is 17 years of age, two are 18 and one is 19. All 4 have clear records. These 4 appellants were arrested just inside the border at Sha Tau Kok - on the Hong Kong side of the lime in Chuny Ying Street which serves to demarcate Hong Kong and Chinese Territory.

3. In his Statement of Findings the magistrate said:

All of the appellants were youths with clear records. They were all illegal immigrants, having walked across Chung Ying Street from the Chinese side of Sha Tau Kok. They had no family support in Hong Kong, and because of this the sentencing options of Detention Centre or Training Centre were not feasible. This left the sentence start point a minimum of 6 months imprisonment. While such a sentence might be appropriate for a local youth, that seemed inappropriate to me considering that had the appellants been convicted for any immigration offense the start point for sentencing would have had to be 15 months imprisonment. Considering these matters I found myself unable to a apply a start point of 6 months for illegal immigrants such as the appellants with improper intentions, when the start point for non criminal illegal immigrants has to be 15 months. Trying to reconcile these considerations I concluded that id months would be an appropriate sentence, that period at least equating with the minimum custodial period of Training Centre Detention, but after making allowances for the youth of the appellants and absence of previous offences in Hong Kong reduced such period to 14 months.

4. With respect, that was not the proper approach sentence cannot be increased merely because an accused may have committed other offences for which he was not charged. I agree with the view expressed by Bewley, J. in The Queen and LEL Lo-to (Magistracy Appeal No. 985 of 1988), that illegality is not an aggravating factor.

5. In my view if the appellants had been what the magistrate termed 'local youths' with no previous convictions, the sentence would have been six months' imprisonment. I therefore allow the appeal, set aside the sentence of 14 months and substitute a sentence of 6 months in respect of each appellant.