THE QUEEN v. OR CHUN PING AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 334 OF 1991

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BETWEEN

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J U D G M E N T

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1. Each of the four appellants pleaded guilty in the Magistrate's court to three charges, one of remaining in Hong Kong unlawfully, contrary to the provisions of the Immigration Ordinance, and two charges alleging using an Identity Card relating to another person, contrary to the provisions of the Registration of Persons Ordinance.

2. The 1st appellant, who was 26 years of age, was sentenced to imprisonment for 15 months on the Illegal Immigrant charge, and to 18 months on each of the Identity Card charges, with all sentences to be served concurrently, making a total effective sentence of imprisonment for 18 months.

3. The 2nd appellant, who was aged 28, was sentenced to 18 months imprisonment on the Illegal Immigrant charge, and 21 months imprisonment on each of the Identity Card charges, all to be served concurrently, making a total effective sentence of imprisonment for 21 months.

4. The 3rd appellant, who was aged 24, was sentenced to 18 months imprisonment on the Illegal immigrant charge, and 24 months imprisonment on each of the Identity Card charges, all to be served concurrently, making a total effective sentence of imprisonment for 24 months.

5. The 4th appellant, who was aged 18, was sentenced to 15 months imprisonment on the Illegal Immigrant charge, 18 months imprisonment on each of the Identity Card charges, all to be served concurrently, making a total effective sentence of imprisonment for 18 months.

6. On the hearing of the appeal, they were all represented by Mr. Lambert Lee, of Counsel. In respect of the Identity Card Charges, the ground of appeal was that the Learned Magistrate misinterpreted So Man King and erred in finding that each appellant's use of another identity card to obtain employment, and to open a bank I Justified some further custodial term above the normal of 15 months.

7. Each appellant had, after coming here as an illegal immigrant, obtained employment in a restaurant by using the  identity card of another, and then opened a bank account using, in each case, the same identity card.

8. The Learned magistrate in his Reasons for Sentence, in relation to the identity card offences, said: "It is well settled that Magistrates should give 18 months imprisonment for these offences, strong humanitarian reasons apart".

9. In order to consider the 13 cases to which he referred me in support of his first ground of appeal, I adjourned judgment until today.

10. It was the contention of Mr. Daley for the respondent that the magistrate was justified in imposing a sentence of imprisonment for 18 months in relation to the Identity Card offences, because each appellant had gone further than merely use the Identity Card to obtain bank employment. By using it to open a bank account as well he thereby obtained a further benefit for himself. I interpolate here that it appears that in each case the bank account was opened for the purpose of paying in the wages received as a restaurant worker.

11. The authorities to which I have been referred make it clear that if the use of the identity card is merely for the purpose of representing that the holder has the right to reside here, then the appropriate sentence is 15 months imprisonment to be served concurrently with a similar term for the illegal immigrant offence. In this case I do not think that the further use of the identity card to open a bank account amounted to obtaining the type of benefit which the Court of Appeal had in mind as requiring an upward adjustment of the sentence.

12. Accordingly, I agree with Mr. Lee's submission in support of ground one of the appeal. For the Identity Card offences, I think that the appropriate sentence was 15 months on each to be served concurrently, and to be served concurrently with the sentence for the Illegal Immigrant offence.

13. The second ground of appeal is that the Learned Magistrate was wrong to make an upward adjustment of the normal sentence against multiple evaders, that being obviously unfair after the implementation of the current executive policy in November 1990. What Mr. Lee was getting at with regard to this ground of appeal was that, since late 1990 it has been the policy not to prosecute but to repatriate even multiple evaders, unless they commit some other offence warranting a prosecution, so that those appellants convicted of entering here unlawfully previously should be regarded now as illegal immigrants with a clear record. The enhanced sentences imposed by the Learned Magistrate were imposed according to his Reasons for Sentence, because he was of the view that he was obliged "to make allowances for their previous convictions".

14. Whilst the Magistrate's approach in doing that was consistent with So Man King, it is not an approach which should be followed now that the policy with regard to multiple evaders has changed. Accordingly, I agree with Mr. Lee that it is unfair to impose a higher sentence simply because a person convicted of an illegal immigrant offence has been here before unlawfully.

15. The proper sentence in their case on the illegal immigrant offences is imprisonment for 15 months. Since that sentence should be served concurrently with the Identity Card offences the same result follows in their cases as well, namely, that the sentences in each case should he imprisonment for 15 months, all to be served concurrently.

16. I allow the appeal of each appellant. I quash the sentences imposed in the court below and substitute therefor on each charge in respect of which they were convicted sentences of imprisonment for 15 months, all of which are to be served concurrently.