HKSAR v. LEUNG SAN KWOK

HCMA 142/98

HEADNOTE

Where a previous conviction for the same offence was reached in proceedings which would not have been brought at all under the prosecution policy of the day, a court sentencing a defendant for remaining without authority having landed unlawfully should refrain from taking the previous conviction into account against the defendant. But where the previous conviction resulted from a prosecution brought pursuant to current prosecution policy, it is open to the sentencing court to pass an enhanced sentence on such repeat offender.

Mrs Justice V. Bokhary further observed as follows:

"Where there has been a benevolent change in prosecution policy, it appears to have been the practice of Magistrates to proceed on the assumption, in the absence of positive information to the contrary, that the circumstances of the earlier offence were such that no prosecution would have been brought under the new policy. That approach by Magistrates seems acceptable to me. But if in any given instance information is placed before the Magistrate that the old prosecution would have been bought even under the new policy, then the old conviction may be a basis for an enhanced sentence."

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 142 OF 1998

(On appeal from TMC 91 of 1998)

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J U D G M E N T

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1. In this case, the Appellant was prosecuted for the offence of remaining without authority having landed unlawfully contrary to Section 38(1)(b) of the Immigration Ordinance, Cap. 115.

2. He appeared before Graeme Mackay, Esquire sitting in the Magistrate's Court at Tuen Mun on 9th January this year and pleaded guilty. The Magistrate sentenced him to eighteen months' imprisonment by adding three months to the 15-month guideline for guilty pleas for such cases, doing so on the basis that enhanced punishment was warranted by reason of the fact that the Accused had a previous conviction for the same offence.

3. Where a previous conviction for the same offence was reached in proceedings which would not have been brought at all under the prosecution policy of the day, a court sentencing a defendant for remaining without authority having landed unlawfully should refrain from taking the previous conviction into account against the defendant. That was in effect the approach of Barnes J in The Queen v. Or Chun-ping and Others [1992] 1 HKCLR 177.

4. In the present case, however, the previous conviction resulted from a prosecution brought pursuant to the prosecution policy currently in operation. Where the previous conviction for the same offence resulted from a prosecution brought pursuant to current prosecution policy, it is open to a court sentencing a defendant for remaining without authority having landed unlawfully to pass an enhanced sentence on such repeat offender. In such circumstances, which differ from those in the The Queen v. Or Chun-ping and Others (supra) and The Queen v. Lam Chi-wah and Others [1992] 1 HKCLR 249 where the earlier prosecution would not even have been brought under current policy, it is open to the Magistrate to pass an enhanced sentence in conformity with what the Court of Appeal said in The Queen v. So Man King [1989] 1HKLR 142.

5. That is sufficient to dispose of the present appeal. But I will just add this which may be relevant in some future cases. Where there has been a benevolent change in prosecution policy, it appears to have been the practice of Magistrates to proceed on the assumption, in the absence of positive information to the contrary, that the circumstances of the earlier offence were such that no prosecution would have been brought under the new policy. That approach by Magistrates seems acceptable to me. But if in any given instance information is placed before the Magistrate that the old prosecution would have been bought even under the new policy, then the old conviction may be a basis for an enhanced sentence.

6. As for the present appeal, it is, for the reasons given earlier, dismissed.