HKSAR v. CHAN PENG CHUK

HCMA 757/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 757 OF 2003

(ON APPEAL FROM ESCC 2230/2003)

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J U D G M E N T

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1. The Appellant pleaded guilty to a charge of Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s. 38(1)(b) of the Immigration Ordinance, Cap. 115. He was convicted and sentenced to a term of 15 months' imprisonment. He now appeals against that conviction.

2. The facts, which were admitted by the Appellant, show that he was intercepted by a police officer at the junction of Holy Cross Path and Shaukeiwan Road, Hong Kong. The police officer demanded the Appellant produce an identity card but he failed to do so and ran away. He was later arrested. The Appellant told the police officer that he was an illegal immigrant from Mainland China. He had entered Hong Kong the day before, having hidden under a container from the Huang Gang check point and he was arrested on 11 July 2003 he was arrested.

3. The Appellant was represented by the Duty Lawyer Scheme. In mitigation, the court was told that he is 26 and single. He lived in China with his girlfriend and had been working as a garment factory worker. He came to Hong Kong to find a better job.

4. He also admitted a number of previous similar convictions. On 6 June 1998, he was convicted of 2 offences; one of Possession of a Forged Hong Kong Identity Card and also another offence under s. 38(1)(b) of the Immigration Ordinance, Cap. 115. He was sentenced to 15 months' imprisonment on each charge, the sentences to be concurrent. On 3 May 2000, he was convicted of Using a Forged Hong Kong Identity Card for which he was sentenced to 15 months' imprisonment; and also sentenced for Breach of Condition of Stay to 3 months' imprisonment, consecutive to the sentence on the first charge.

5. The Appellant's home-made grounds of appeal state that he came to Hong Kong on a 2-way permit on 20 July 2001 and failed to return to China when it expired on 19 August 2001. On 6 December 2001 he was caught by the police and taken to Victoria Immigration Centre. His travel document was retained and he was put on a recognisance for 1 week. However, he failed to attend court and his surety forfeited $7,000. The Appellant said that on 11 July 2003, he was caught again in Sai Wan Ho and in a moment of "confusion and nervousness" claimed to be an illegal immigrant. He says now that the name Chan Peng Chuk under which he is charged is false. In fact, he had come to Hong Kong legitimately on a 2-way permit and overstayed. On that basis he wanted the case to be brought to court again.

6. This appeal was first heard on 29 October 2003. On that occasion, the Appellant told the court that in the year 2000 he used a 2-way permit in the name of Choi Shuen Kit, which had a photograph on it. He gave a different name on his arrest as he did not have the 2-way permit with him. He said his alias was Wong Wing-fai and an alias was used because he had breached the law in Mainland China, so he changed his name in 2001.

7. When asked why he had not told the Duty Lawyer that when he appeared before the Magistrate, he said that he had told him about the travel document but that the Duty Lawyer told him not to cause so much trouble. I do not believe the Duty Lawyer would behave in that fashion. The Appellant also said he had made an application to the Immigration Department to obtain his 2-way permit. He said that he had been released from prison on 25 April 2001 and then repatriated to China.

8. Given the content of this application, this appeal was adjourned part-heard for 3 weeks for enquiries to be made about the Appellant's travel document. In a letter dated 19 November 2003 sent to the court, the Immigration Department reported that Mr Choi Shuen Kit was under an investigation by the Immigration Department as he was suspected of offences of making false representations and using a forged travel document. Under caution, the Appellant told the Immigration Department that his true identity was Wong Wing-fai, with the date of birth 9 April 1977. He claimed he entered Hong Kong on 20 July 2001, with a forged entry permit in the name of Choi Shuen Kit, with the date of birth 13 November 1976. Examination of the permit by the Government Chemist showed the photograph had been substituted.

9. I note that the person who appears before the court is Mr Chan Peng Chuk and there is no cogent evidence which gives any other identity precedence over that one. The Appellant chose to make an unequivocal plea of guilty in that name before the Magistrate and made no attempt to tell the Magistrate what his position was, if it was indeed as he claimed. From the nature of his criminal record it is clear that the Appellant knew exactly what he was doing in coming to Hong Kong and was well aware of the penalties for the various offences.

10. The Magistrate noted in her Statement of Findings that the Appellant's criminal record shows that he used a different name when arrested by the police, on this occasion, to the names he used in 1998 and 2000. The Magistrate recognised that he certainly knows the difference between being an illegal immigrant and being in breach of a condition of stay.

11. Given the unequivocal plea and the facts of this case, I consider that the conviction by the Magistrate, in whatever name the Appellant might care to appear before the court, was entirely correct. Accordingly, the appeal is dismissed.