HKSAR v. SHI BAOZHEN

HCMA293/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 293 OF 2008

(ON APPEAL FROM STCC 1859 OF 2008)

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Dates of Hearing:  16 & 30 May 2008

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J U D G M E N T

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1.  This is an appeal against sentences of 15 months and 14 days, passed respectively following pleas of guilty to 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, and to a breach of condition of stay, contrary to section 41 of the same Ordinance.

2.  The facts admitted in the Magistrates’ Court were to the effect that the Appellant had entered Hong Kong lawfully on the strength of a Chinese two-way permit on 3 August 2007, and was allowed to remain as a visitor for 7 days; that she overstayed until about 23 September 2007, when she sneaked back into the Mainland by boat; that she then sneaked back into Hong Kong on 25 February 2008, by boat again, and was intercepted in the street by the police on 26 February 2008.

3.  Upon appearing in front of me, the Appellant in person claimed she was never in fact guilty of illegally remaining, as she had at all times merely overstayed; in other words, she had entered lawfully on 3 August 2007 and was still overstaying that stay when she was intercepted without having returned to the Mainland in the meantime.

4.  To someone from the Mainland, perhaps with little education but some basic common sense, whose goal is to remain in Hong Kong unlawfully with the benefits that is capable of bestowing, saying to the authorities when caught that they had only just arrived by sneaking in may seem less mischievous than admitting to a far longer overstaying, especially if they have been working.  The embarrassing early stamp in the Chinese two-way permit is met by a lie to the effect that they had been back to the mainland in the meantime.  It is also the case, as is claimed by this Appellant, that they come to hear of our policy of repatriating those who sneak into Hong Kong and remain unlawfully without any prosecution or penalty if it is the first time that they have come and they commit no crime whilst here.

5.  I can see the incentive to tell the lie that this Appellant claims she told.  What has happened, though, is that after her admission to the police of being an illegal immigrant she was processed by the Immigration Department, whereon the chop in the Chinese permit showing entry into Hong Kong was discovered without an exit chop revealing the overstaying and thus a crime which triggered the prosecution for unlawfully remaining.

6.  Seeking to work out the truth of what has occurred by reference to what an Appellant says in this situation is not easy because the fact is Appellants tend to say whatever they think suits them at any particular stage.  The one irrefutable fact is the entry chop in the Chinese permit, which establishes original, lawful entry.  Given the incentives to make the false claim to being an illegal immigrant, with a nod to the notion that sneaking back to Mainland is sneaking away from the beneficial goal of remaining in Hong Kong, I resolved the matter by being prepared to act on the basis that what this Appellant now tells me is correct.  Given the workload of the duty lawyers, the rapidity of the proceedings in the Magistrates’ Court and the likely depth of commitment to the false story, the fact that the plea was entered below on a false basis, even though the Appellant was then represented, does not particularly surprise me.

7.  What lies behind the problem that has arisen here is the enormous disparity in sentence between overstaying and unlawfully remaining, when the mischief is substantially the same.  It may be that the time is coming when the superior courts will have to have a look at the guideline in So Man Kin and my understanding is that would receive a sympathetic hearing in the Magistracy and we have discussed in court transferring this case for hearing to the Court of Appeal.  However, after some frank interchanges and - I am very grateful for it, I might add - some help from the officer from the Immigration Department, I have decided against that course, and it may be - and I have some statistics - that the problem is not that widespread and can be met by doing justice in the individual case by adjusting the 15 months’ sentence down to the sentence which simple overstaying would have attracted.

8.  It is common ground that the current sentencing practice is that a suspended sentence is passed for simple overstaying, unless that overstaying exceeds 2 years, when it then attracts an immediate custodial sentence.  Accordingly, what I shall do is quash the sentence of 15 months’ imprisonment and impose a sentence for overstaying, even though the actual offence remains the apparently graver one, and so pass a sentence of 28 days’ imprisonment suspended for 2 years.

9.  Madam, I am obliged to explain what a suspended sentence means to you.  It means that if within a period commencing today and lasting for 2 years you were to commit in Hong Kong an offence punishable with imprisonment, you would have to serve the 28 days in addition to any sentence you then received.

Representations: