THE QUEEN v. FONG MAH-TIN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1291 & 1389 OF 1988

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BETWEEN

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J U D G M E N T

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1. The appellants pleaded guilty y before a magistrate to the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115. They were each sentenced to 15 months imprisonment.

2. The sole ground of appeal against sentence in each case is that the magistrate failed to give any or any sufficient consideration to the undisputed fact that that the appellants are only 16 years of age.

3. There are dicta in two judgments which seem to suggest that some consideration may be given to illegal immigrants of very young age. The first judgment is to be found in The Attorney General, v. Lam Ping-chun Application for Review No. 10 of 1988 where Cons, V.-P. said:

"In the particular instance the Magistrate apparently accepted that humanitarian considerations to that degree were to be found in the fact that the Respondent was only 18 years of age, that he was a stranger alone in Hong Kong and hat he had not even a roof to cover his head.

With every respect to the Magistrate, those factors do not even start to get suspended sentence off the ground. Illegal immigrants are commonly in the younger age groups, although they must necessarily be sufficiently mature to have made the decision to embark on the hazardous course that they did, and if the Respondent has no friends or relatives here, and no place to lay his head, those facts were well known to him before he set out."

4. These observations were cited with approval by another division of the Court of Appeal in The Attorney General v. Tam Man-bing and others Application for Review Nos. 16, 17 and 20 of 1988. In delivering the judgment of the Court, Power J.A. said:

"We adopt what was said by Cons, V.-P., in that passage. We are satisfied that, the fact that these young men were 18 years of age cannot be of any real assistance to them when pleading for leniency. The courts must tale a severe view of offences of this kind even when committed by 18 year olds as it is this group which is particularly inclined unlawfully to enter Hong Kong. We are satisfied that the proper sentence in each case would have been one of 15 months imprisonment."

At page 2 of the judgment, Power J.A. also said:

"Each of the unlawful entrants was 18 years of age. It was suggested by Mr. Cheng Huan, Q.C., who appeared with Mr. Louis Tong for the respondents, that Cheung Hoi Wing should have been dealt with upon the basis that his age was 16 years and 5 months. This is the age he claimed when interviewed by the representatives of the Commissioner of Correctional Services for the purpose of making the Detention/Training Centre Report which was called for by the Magistrate. The magistrate however, accepted, as he was entitled to by virtue of s109A of the Criminal Procedure Ordinance, that Cheung Hoi Wing was 12 years of age. He relied, no doubt, upon the statement contained in the report and we are satisfied that we also must deal with both upon the basis that each was 18 years of age."

5. Both cases were application for review of suspended sentences imposed by magistrates. In application for Review Nos. 10, 17 and 20, the illegal immigrants were 18 years of age. The fourth application and that is Application for Review No. 16 involved a youth of 16 but the facts of that case are very different and should be considered as special to its own.

6. Here we have two appellants who are only 16 and in view of their very young age, I am of the opinion that some allowance could be given. Accordingly, I allow the appeal and reduce the sentence to 12 months in each case.