HKSAR v. LAM KA YAN

HCMA 614/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 614 OF 2001

(ON APPEAL FROM KTCC 3143/2001)

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J U D G M E N T

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1. On 22 May of this year the appellant pleaded guilty at Kwun Tong Magistracy to an offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully. She was sentenced to a term of 12 months imprisonment and she appeals against that sentence in Form 102 upon the ground that it was too severe.

2. In Form 101 the appellant says this:-

"I came to Hong Kong on the strength of a travel document. I am just an overstayer. I should not have been charged with - and convicted of - unlawful entry."

3. In the magistrates court following her plea of guilty the appellant admitted these facts: -

" At about 1740 hours on 2001-05-19, (a police officer) in Tseung Kwan O confronted the defendant who appeared to be an illegal immigrant. The defendant was then stopped for identity card checking. As a result, the defendant admitted that she sneaked into Hong Kong on 2001-05-19 from China and she did not possess any Hong Kong identity card. The defendant was verbally cautioned and arrested for the above offence.

2. At 0943 hours on 2001-05-21, the Criminal Record Office revealed that she had a criminal record of 'Breach of Condition of Stay' in 1998.

3. Subsequently, the defendant was formally charged with the above offence."

4. In his statement of findings and reasons for sentence the learned magistrate, inter alia, said the following: -

" The defendant purports to appeal against both conviction and sentence. However she pleaded guilty to a single offence of 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, Cap. 115 of the Laws of Hong Kong. She admitted the brief facts and I convicted her thereon.

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She admitted to one previous conviction for an offence of Breach of Condition of Stay for which she had been imprisoned in 1998 for some 2 months.

Duty Lawyer told me that she had worked as a salesgirl in the Mainland earning some $400 RMB per month. That her father was a farmer and there were 6 younger sisters and a younger brother to support. He said that she had come to Hong Kong looking for a better living to support her family. I was asked for a lenient sentence.

In sentencing the defendant I took account of the sentencing guidelines laid down in the case of R. v. So Man-king and Ors. [1989] 1 H.K.L.R. 142(C.A.). This provides for a sentence of 15 months immediate imprisonment for a person who had pleaded guilty at the first available opportunity and had come and remained illegally for the first time. In the present case nothing was urged that could amount to strong humanitarian grounds for departing from that starting point. However I did take into account that no other offence had been committed and that the previous conviction was of a slightly different character. Therefore I sentenced the defendant to 12 months immediate imprisonment."

5. Before me the appellant has sought to repeat her assertion made in Form 101 that she had not in fact entered Hong Kong in May of this year but that she came here on a 7 day visitors permit in 1999 and had remained here ever since and thus she was an 'overstayer' and presumably that she should have been prosecuted and sentenced for that offence.

6. That account of matters given to me this morning comes as a complete surprise to Mr Dick who appears for the Respondent and to those instructing him. It is the first time that the appellant has told anybody of this and it directly contradicts her admission before the learned magistrate; her instructions to her lawyer in that court; and what she told the police in specific and considerable detail upon her arrest as to precisely how she sneaked into Hong Kong by sea from the Mainland with the assistance of a so-called snakehead. I just add that I have had the benefit of reading that statement which the appellant agrees that she made.

7. It has become plain to me upon further enquiry of the appellant that what she is asking for is a reduction in her sentence and nothing else. If she thinks that by changing her account of matters (truthfully or untruthfully) that might have the effect of reducing her term of imprisonment then she is mistaken. Indeed it is distinctly possible that had she been prosecuted for being an overstayer and seeking employment here her sentence would have been longer and I am anxious that she understands that.

8. In any event the appellant having pleaded guilty before the learned magistrate and having (with the benefit of a lawyer's advice) admitted facts wholly consistent with that offence she has by virtue of s.113(1) of the Magistrates Ordinance no right of appeal against conviction and I, in consequence, have no jurisdiction to entertain such an appeal.

9. As to her appeal against sentence that sentence is not too severe. Indeed it is arguably a lenient sentence for this offence given her conviction in 1998. The appeal against sentence must accordingly be dismissed.