THE QUEEN v. YU PING

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BETWEEN

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J U D G M E N T

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1. The appellant pleaded guilty to remaining in Hong Kong without the authority of the Director of Immigration, after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115 and was sentenced to 15 months imprisonment.

2. Mr Tong, who appears for the appellant, does not dispute that this is the usual sentence for this offence. He submits, however, that the facts of the case do not indicate that the appellant was arrested with at least two other illegal immigrants. As it is not government policy to prosecute where the latter are arrested singly or in twos, Mr Tong asks me to deal with the appellant more leniently. In.R. v. Lee Yan-bi M.A. 1058/88, I ordered the immediate release, after some three months in custody, of two such offenders.

3. However, Counsel for the Crown, Mr Leung, while conceding that prosecutions in such circumstances do occasionally occur, says it remains policy not to prosecute and the court may assume, unless notified to the contrary, that any defendant charged with this offence was arrested in a group of three or more. Such was the situation, he maintains, in the case of this appellant.

4. Mr Tong's instructions being to the contrary, I order that the case be remitted to the magistrate, to be heard de novo, in order that the matter may be resolved.

5. If the appellant proves to be right, no doubt the magistrate will take what I said in Lee Yan-bi into account when passing sentence.