THE QUEEN v. LUNG HON WAH AND OTHERS

Headnote

Illegal immigrants - attempt to land - new prosecution policy not publicized - tariff of 15 months' imprisonment not followed - sentence reduced to six months.

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 144/90

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JUDGMENT

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Hon. Yang, C. J.:

1. Fourteen male persons pleaded guilty before Mr. A.F.H. Crawshaw sitting at South Kowloon Magistracy to a charge of attempting to land in Hong Kong without permission contrary to section 38(1)(a) of the immigration Ordinance, Cap. 115 and section 81 of the Interpretation and General Clauses Ordinance, Cap. 1.

2. The admitted facts are that at about 8.55 p.m. on the 6th January 1990 police officers on a police launch saw a vessel heading towards Hong Kong. They intercepted the vessel off Black Point within Hong Kong waters. The fourteen male persons were found on board and each admitted to being an illegal immigrant from Mainland China. Upon being arrested each said under caution that he had paid RMB $700 to a man in China for his help to sneak into Hong Kong. It would therefore appear that they attempted to enter Hong Kong as an organized group. The learned trial magistrate found no exceptional humanitarian grounds and, except for Chan Chi-lam (D4, 17 years of age), Chan Yu-tim (D5, 13 years of age) and Ho Kam-po (D8, 14 years of age), he followed the guideline laid down in The Queen v So Man-king Magistracy Appeal No. 408/1988 and sentenced the rest to 15 months' imprisonment each. D4 was sentenced to 12 months' imprisonment, D5 and D8 were ordered to be detained in a place of detention by the Director of Social Welfare for such period not exceeding six months as the Director may determine.

3. The judgment of this Court in The Queen v So Man-king, delivered on 10th August 1988, referred to the Government policy of not normally prosecuting an illegal immigrant who had entered Hong Kong for the first time. Such an illegal immigrant would he repatriated forthwith. There were two exceptions to the above policy: (i) if the immigrant was one of a "sizable group" of six or more persons found on a construction site or some other place of employment such as a farm, factory or restaurant: (ii) if the immigrant was at the same time also charged with some other offence, such as the possession of a forged identity card.  If an immigrant came within either of these exceptions, he would be prosecuted even if it was his first illegal visit to Hong Kong.

4. On the 10th May 1988, yet another exception was introduced as a government policy: it was decided that illegal immigrants arriving in Hong Kong in groups, whether self-organized or organized by others, would be prosecutes for attempting to laned even if it was their first attempt. No publicity was given to this new policy.

5. None of the fourteen male persons who came before Mr. Crawshaw had attempted to enter Hong Kong before.

6. In The Queen y Cheung Kwok-hoi, Magistracy Appeal No. 794/1988, fifteen persons attempted to enter Hong Kong illegally after Typhoon Warren had destroyed vast areas in Wei Tung County in early July 1988. Barnes, J., in allowing their appeal against the sentence of 15 months' imprisonment, said:

        "But the real irony is this had Warren struck them in early May rather than in late July, they would not have been prosecuted for doing what they did but merely repatriated on being caught.

 

        Mr. Lugar-Mawson conceded, in the course of his submissions when I asked him, that each of them could reasonably have believed notwithstanding the publicity regarding illegal immigrants , found on construction sites, that if he made it to Hong Kong and avoided working on a construction site, he would not run the risk of prosecution if caught but merely the risk of repatriation. I consider that these Appellants do warrant consideration as illegal immigrants prosecuted following an unannounced change in policy."

 

7. He reduced the sentence to six months' imprisonment for each of the accused.

8. In So Man-king (supra), the Court of Appeal said - and this was followed by Barnes, J.: -

         "The difficulty which faces courts in such a situation is obvious. The legislature has decreed that it shall be a  criminal offence to come into or remain in Hong Kong unlawfully, to be punishable by a substantial fine and imprisonment. The   courts must apply that law, and this Court has laid down that a Magistrate upon whom the principal responsibility falls in such cases, should regard sentences of 15 months as appropriate for most occasions. On the other hand the executive has ensured that for the past eight years the law should for the most part be a dead letter and that in particular, those in the position of the Appellants should not be punished at all.

 

         We express no opinion as to whether the executive ought, as a matter of practice, to give public notice of any intended change in policy. That is a matter entirely within the executive's own discretion. But we are satisfied that the fact that the authorities have, by a well publicised course of conduct over many years, lulled a particular class of persons into a justifiable sense of security that the law would not be strictly enforced so far as they are concerned, and then suddenly proceeded to enforce the law without giveng those persons ally opportunity whatsoever to reconsider their position, is a factor that may properly be taken into account when assessing sentence."

 

9. Of the fourteen males charged at South Kowloon Magistracy only eight (i.e. Dl, 2, 3, 7, 10, 11, 12, 13) have appealed against sentence. As no publicity had been given to the new policy - it matters not whether the fourteen came as a self-organized group or a group organized by others, and for reasons given in So Man-king and Cheung Kwok -hoi cited above, I allow their appeal and reduce the sentence on each of them from one of 15 months' to one of six months' imprisonment. In my view, it makes no difference in this case that the offence was one of attempted illegal landing rather than the completed offence.

10. I also direct that the remaining six males who have not appealed should be advised to apply for leave to appeal out of time.