HKSAR v. TANG KWOK SHUN

HCMA156/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.156 OF 2006

(ON APPEAL FROM KCCC 748 OF 2006)

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J U D G M E N T

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1. The appellant was convicted on his own plea of one charge of ‘Remaining in Hong Kong Unlawfully’, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.  He was sentenced to 15 months’ imprisonment.  He now appeals against that sentence.

2. The admitted facts are that on 26 January 2006, the appellant was seen wandering suspiciously in a road in Tuen Mun and was stopped and admitted to the police to have sneaked into Hong Kong from Shekou to look for employment.

3. The following is what the magistrate has to say about the sentence — 

“5.   The Appellant had previous convictions in 2004 for the offences of burglary and illegal remaining.  On that occasion, he was sentenced to 2 years on the burglary charge and 15 months for the illegal remaining charge. It was ordered that 5 months of the sentence for the illegal remaining charge should be served consecutively to that of the burglary charge, so he served a total of 2 years and 5 months’ imprisonment, imposed on 30/8/2004.  After hearing Counsel in mitigation, I sentenced him to 15 months’ imprisonment for the offence of illegally remaining in Hong Kong.  It is against this sentence that he now appeals.

6.    I considered all that was urged upon me in mitigation by Counsel on behalf of the Appellant — that he was only 18 and an orphan, and that he had come to Hong Kong to find work, and that he had pleaded guilty.

7.    The Court of Appeal has said time and again that an appropriate sentence for offences contrary to Section 38(1) of the Immigration Ordinance, Cap. 115, should be one of 15 months’ imprisonment on a plea of guilty.  Substantial discounts should be given in cases of voluntary surrender and humanitarian considerations should always be borne in mind, with an upward adjustment for multiple entries.

8.    Here, the Appellant returned to Hong Kong illegally almost immediately upon his release from prison for a similar offence.  Save for his plea, I could little mitigation of weight before me.  The Court of Appeal has indicated that even for young offenders, a term of imprisonment for this type of offence is appropriate.  I could see no humanitarian considerations to warrant my departing from the guideline sentence of 15 months’ imprisonment.  Although this was his second unlawful entry into Hong Kong, I still sentenced him to 15 months’ imprisonment.

9.    On reflection, I do not think I could have imposed any lesser sentence than that which I did impose.”

4. Before me, the appellant complains that compared to like cases, his sentence is lengthier.  He says he is only 18 and has come from a deprived background.

5. Clearly, the magistrate is right and the appellant is wrong about what constitutes a proper sentence in this case.  There is also nothing in the appellant’s background that warrants a reduction from the usual tariff.  The appeal is dismissed.