ATTORNEY GENERAL v. TAM SHEK CHUEN AND ANOTHER

IN THE COURT OF APPEAL

Application for Review
No. 16 of 1991

HEADNOTE

Unlawful entrants - residents in the hinterland of Sha Tau Kok Village who are not indigenous residents of Sha Tau Kok are to be treated in the same way as other unlawful entrants in accordance with the guidelines in R. v. SO Man-king & others [1989] 1 HKLR 142. The fact that an unlawful entrant comes to Hong Kong for the purpose of committing a criminal offence intending to return immediately thereafter to China is not a factor which weighs in mitigation.

IN THE COURT OF APPEAL

Application for Review
No. 16 of 1991

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J U D G M E N T

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Power, J.A.:

1. This is the judgment o?the Court.

2. The respondents together with three other persons were charged jointly before Mr. Christie in Fanling Magistracy with burglary. Each was charged separately with remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully, contrary to s.38(1)(b) of the Immigration Ordinance. The 1st respondent, who was D3 at trial, was aged 23 at the time of the offence and the 2nd respondent, who was D5 at trial, was aged 17. It was alleged that they broke into and removed $55,400 worth of clothing from a warehouse at 31 Choi Yuen Kok in Sha Tau Kok. They denied removing anything from the warehouse. The burglary charge was amended to one of attempting to steal. They then pleaded guilty. Each respondent was sentenced to six months on each charge and the sentences were ordered to be served concurrently.

3. The trial judge said when sentencing:

"The defendants are all residents at Sha Tau Kok on the Peoples' Republic of China side .........................

D3 is aged 23 and had been unemployed for 4 months. His elder brother was killed in a traffic accident in May and as a result his mother, who is in.poor physical health, is severely depressed. His parents are separated, his father living in Hong Kong. He and a younger brother live with his mother in Sha Tau Kok.

D5 is aged 17. He recently left school but is unemployed, and lives with his family in Sha Tau Kok.

I considered that the guideline sentences for the 'remaining' offence, set out in So Man-king [1989] HKLR 142, should not apply to these defendants. I am satisfied that they would have returned to the Chinese side of Sha Tau Kok the same day had they not been arrested. This distinguishes their case from the construction site worker who intends to remain in Hong Kong as long as he can. No doubt for this reason 'border-crossers' (as residents of Sha Tau Kok are commonly referred to by the prosecution in cases coming before this court) are not prosecuted as illegal immigrants even when found in employment on the wrong side of Chung Ying Street.

I considered that there should be custodial sentences for the 'remaining' offences but they should be concurrent with, and not exceed, the sentences on the burglary charge.

I also considered that the sentences for the burglary to be imposed on Dl and D5 (2nd respondent) should, having regard to their age, be short - especially in Dl's case because the sentence will disrupt his schooling.

I fixed concurrent sentences of 3 months imprisonment for Dl, and 6 months imprisonment for D5.

D3 (1st respondent) had an humanitarian ground to be considered, relating to his mother's situation, and giving weight to this I fixed his sentences at 6 months imprisonment. On further considering this sentence with the benefit of Senior Crown Counsel's submission on a review application, I now think that this sentence may be too generously discounted but I was not disposed to alter it on review."

4. The Attorney General now seeks a review of the sentences on the ground that they were manifestly inadequate and wrong in principle. Mr. Casewell, who appears for the Attorney General, submitted that six months was wrong and inadequate on the "remaining" charges as the sentences on such charges should have been imposed in accordance with the well-established guidelines in R. v. SO Man-king & others [1989] 1 HKLR 142 which indicate a sentence of imprisonment for a period of 15 months. He further submitted that the order that the sentence of six months on the attempting to steal charge be concurrent was wrong in principle as two quite separate offences were involved.

5. The magistrate was clearly under the impression that residents of Sha Tau Kok are not prosecuted as illegal immigrants even when in employment on the Hong Kong side of Chung Ying Street, which forms the border between China and the New Territories. This being so, he seems to have considered that.such residents, whatever their reason for crossing the border, were entitled to be dealt with in a more lenient way than that indicated in the guidelines referred to above.

6. Mr. Casewell took issue with this. He stated that there are only two categories of persons who are not prosecuted for border crossing and that each can be identified by permits which, periodically, are issued not by the Hong Kong government but by the Chinese authorities. The first group are cross-border farmers and the second are persons who are allowed to cross the border for shopping purposes. He stated that, while such persons are notprosecuted for border crossing, they are prosecuted if they take up employment on the Hong Kong side. Mr. Casewell was, however, on the first day of hearing, unable to give comprehensive particulars in this regard and the court indicated that it would adjourn the matter to allow him to obtain full information as to government policy with regard to border crossers.

7. Upon resumption, Mr. Casewell stated that the village of Sha Tau Kok straddles the border and that the actual borderline runs along Chung Ying Street. He stated that about 2,000 indigenous villagers of Sha Tau Kok, who are descendents of the original villagers, are living on the Chinese side of the border. The remainder, of course, live on the Hong Kong side. He stated that these 2,000 persons are allowed to move freely on both sides and that the Chinese authorities issue permits to them. He said that the indigenous villagers are not prosecuted for being on Hong Kong side even if employed and that they are known by the Hong Kong police and are registered by the Chinese authorities. He then referred to the hinter land which has grown up around Sha Tau Kok in which about 16,000 persons, to whom he referred as "non-indigenous" residents, live and stated that such persons are prosecuted as unauthorized entrants if found on the Hong Kong side of the border and that the Chinese authorities do not allow such persons to enter Shau Tau Kok Village without a permit. He stated that both respondents came from the hinterland and were, therefore, liable to prosecution in the ordinary way.

8. Given the above information, which it must be said was not placed before the magistrate, he submitted that it was wrong for the magistrate to regard the respondents as persons in a special category whose presence was tolerated on the Hong Kong side of the border. The position having been made clear, we are satisfied that his submission is correct.

9. Mr. Casewell went on to submit that age in the case of the 2nd respondent and humanitarian grounds in the case of the 1st respondent should not have been taken into consideration by the magistrate when fixing the sentence on the "remaining" offences. An examination of his reasons, however, indicates that he only took into consideration age when assessing the sentence to be imposed on the 2nd respondent for the attempting to steal charge as to which sentence the Attorney General makes no complaint. We, however, when dealing with this application, must give such weight as is proper to the youth of the 2nd respondent. The magistrate did, however, take into account humanitarian factors when fixing the sentence to be imposed on the 1st respondent as regards both the "remaining" offence and the attempting to steal offence.

10. The magistrate observed that it was in the respondents' favour that they had not come as construction site workers to remain in Hong Kong as long as they could. We think that this tells little in their favour when balanced against the fact that they came to Hong Kong for the purpose of committing a criminal offence.

11. Mr. Lok who appeared for the respondents submitted that the tariff on the "remaining" offences was not applicable as the applicants had no intention of remaining other than for a minimal time in Hong Kong and would, indeed, have, immediately after committing an offence, returned to their abodes in China. He submitted, further, that the humanitarian grounds, which had particular application to the 1st respondent, were sufficient to take the present case out of the normal tariff situation. He referred to the case of The Queen v. Wong Sui-cheung Magistracy Appeal No.1599 of 1989, in which sir Ti-liang Yang C.J. reduced the sentence on a boy of 17 to one of nine months. He submitted that in the light of that decision the six months given to the 2nd respondent in the present case was not manifestly inadequate. He submitted also that it was right to make the sentences concurrent as the offences occurred in the course of one transaction. He referred finally to The Attorney v. WONG Kwok-wai [1991] 2 HKLR 384 which indicates that where a sentence is increased by the Court of Appeal at a time which is close to the end of the sentence imposed by the sentencing court, a discount should be given. He suggested that this was applicable in the present case as the respondents were due to be released on 25th January 1992, four days after the date of the second hearing. Judgment in this matter has not,in fact, been delivered until today the 13th day of March 1992.

12. We are satisfied that in cases such as this where the offenders are not indigenous residents of Sha Tau Kok and cross the border for the purpose of committing an offence, even though they may have an intention of immediate return the tariff of 15 months is applicable. Consideration must, nevertheless, be given to mitigating circumstances which have reference to the particular offender. We consider that weight should be given in mitigation to the age of the 2nd respondent. As to the humanitarian grounds urged on behalf of the 1st respondent, we are satisfied that the approach indicated by Kempster J.A. in The Attorney General v. Liu Chi-ping Application for Review No.1 of 1990 should be followed. In that case Kempster J.A. said, at p.4:

"A sentence of 15 months imprisonment would have been appropriate to the circumstances of each respondent. In so saying we accept that Chan Kin Cheong's father is dangerously ill. But Chan came to Hong Kong with knowledge of that illness and, accordingly, we do not think that any strong humanitarian consideration arises in relation to him or to any other of the respondents whose sentences we have considered today."

We, therefore, do not consider that any weight can properly be given to the considerations that have been advanced on his behalf.

13. We are satisfied that the sentences should have been consecutive as each offence, although proximate in time, was of a quite different character. We are satisfied finally that both respondents are entitled to a discount given that their sentences are to be increased after the expiration of the original sentences.

14. The 1st respondent's sentence of six months on the "remaining" charge will be varied to one of twelve months and the sentence of six months on the attempting to steal charge will be ordered to be consecutive to that sentence.

15. The 2nd respondent's sentence of six months on the remaining charge will be varied to one of nine months and his sentence of six months on the attempting to steal charge will be ordered to be consecutive to that sentence. The sentences on both respondents are ordered to run from the date of their first court appearance.