R. v. WU CHUN

IN THE HIGH COURT

1994, No. 693

Magistracy Appeal

-Headnote-

Criminal law - So Man-king [1989]1 HKLR 142 guidelines for s38(1)(b) Immigration Ordinance offences - Combined experience of sentencing courts - Importance of consistency in sentence. Whilst So Man-king imposes no strait jacket, individual magistrates should not stray too far from the guidelines in pursuit of deterrence. On appeal to High Court, sentence of 18 months set aside and substituted by one of 15 months.

IN THE HIGH COURT

1994, No. 693

Magistracy Appeal

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J U D G M E N T

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Litton, J.A. (sitting as an additional Judge of the High Court):

1. This is an appeal against sentence by Miss Wu Chun, aged 22, who was convicted at the North Kowloon Magistracy by Mr JM Meredith on two charges to which she had pleaded guilty. The two charges were: (a) the possession of a forged Hong Kong Identity Card and (b) remaining in Hong Kong without the authority of the Director of Immigration contrary to section 38(1)(b) of the Immigration Ordinance. On charge A she was sentenced to 18 months' imprisonment and on charge B 15 months to be served concurrently making a total of 18 months.

2. The facts leading to the convictions briefly were these. At about 11.25am on 10 June 1994 the appellant was intercepted by the police inside the Mongkok MTR Station. She was asked to produce her proof of identity and she produced the identity card which formed the subject of the A charge. On being questioned, she admitted that she had entered Hong Kong illegally three days before. The forged identity card was photo-substituted and the appellant had bought it in China for RMB1,000. The appellant has a clear record.

3. This case is almost indistinguishable from the unfortunately large numbers regularly coming before the magistrates courts of Hong Kong in recent years. There was nothing exceptional in the appellant's family circumstances. She had prior to her illegal entry into Hong Kong suffered an accident which resulted in her being off-work for a few months. This is said to have led to her impecuniosity which then forced her to risk the unlawful entry into Hong Kong.

4. The guidelines evolved by the Court of Appeal in the case of So Man- king (1989)1 HKLR 142 were the synthesis of the combined experience of the magistracies dealing with such cases at that time. It was heard by the Court of Appeal more than six years ago. Because there was at that time, understandably, a considerable divergence in the sentences imposed, the case went up to the Court of Appeal under the provisions of section 118(1)(b) of the Magistrate Ordinance to enable the Court of Appeal to give fresh guidance with regard to the appropriate sentence for such offences.

5. The policy behind the sentence is deterrence. The evidence adduced before the court in So Man-king suggested that whilst the more lenient sentences ranging from about six to twelve months' imprisonment had little impact, the cranking up of the sentence to 15 months' imprisonment had the desired effect; it resulted in the figures of illegal immigrants detected in June and July 1988 dropping dramatically. Plainly, a paramount policy consideration behind the guideline is the deterrent effect of the 15 months' imprisonment. So the principle was laid down in this to be the normal term So Man-king for of imprisonment after a guilty plea. It is worth emphasizing that in such cases the police would not normally charge a first offender unless he or she had committed another offence together with that of unlawfully remaining in Hong Kong. The exception is where they are found at a place of work or in a vice- establishment where, even without the possession of a forged identity card, they would normally be prosecuted.

6. It is quite clear from the circumstances of the present case that there are no exceptional circumstances which should bring it outside the normal sentence of 15 months' imprisonment suggested as the norm in So Man-king.

7. The magistrate in imposing sentence said this:

"If 15 months is the proper sentence for the offence in charge B, then the possession of a forged identity card is a serious aggravation of that offence because the purchasers of such cards are keeping thieves and forgers in a very lucrative business. That merits an extra 3 months."

8. I have sympathy with the view expressed by the magistrate. The difficulty I have in this case is to decide whether that could properly be taken into account as an aggravating circumstance having regard to the guidelines in So Man-king. Just as deterrence is a matter of great public importance so there is another matter of policy to be borne in mind when sentencing: it is the consistency in sentence.

9. Mr Veltro for the Crown was unable to tell me whether the sentence of 18 months imposed by Mr Meredith reflects the general view now taken either in the North Kowloon Magistracy or in the other magistracies in Hong Kong dealing with these cases. This leaves me with considerable unease. It should however be emphasized that guidelines for sentences are never regarded as strait jackets and there could well come a time when, by the joint experience of sentencing courts there is seen to be an inadequacy in the term imposed; the deterrence has lost its effect. There might then be evolved an upwards revision of the term imposed because the previous normal sentence is shown to have become ineffective.

10. If there is to be such upwards revision of sentence it ought to be done uniformly. There is no such move, as far as I can judge, on the part of the magistrates generally dealing with these cases in Hong Kong, to crank up the sentence. It does appear that the sentence of 18 months' imprisonment imposed on charge A is out of line and is not justified by the reasons given by the magistrate. It follows therefore that this appeal must be allowed. The sentence of 18 months' imprisonment on Charge A is discharged and one of 15 months' imprisonment is hereby substituted making therefore a total of 15 months' imprisonment for this appellant.