THE QUEEN v. LI MEI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1098 OF 1991

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BETWEEN

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J U D G M E N T

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1. On the 20th October 1991 the appellant gave notice of her intention to appeal to a judge of the Supreme Court of Hong Kong against sentences imposed on convictions by G.P. Muttrie, Esq., a magistrate sitting at the Kwun Tong Magistrates Court, in respect of sentences imposed in Case No. NK13367/91 (a) resisting arrest and (b) remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawful in Hong Kong; and Case No. KT7259/91 of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong.

2. For these offences, to which she had pleaded guilty, the appellant was sentenced to 1 month and 15 months respectively in Case No. NK13367/91 and 6 months in Case No KT7259/91, all to run consecutively.

3. The circumstances in which she came to be before the court is set out in the Statement of Findings of the magistrate as follows:-

"The Appellant appeared before me at Kwun Tong Magistracy on 9th September 1991. She was charged with Remaining in Hong Kong, etc., on 7th September. She pleaded guilty. I was told that she had been convicted of a similar offence in Case No. NK13367/91, on 23rd July 1991, which she denied. The case was adjourned for record and sentence to 24th September 1991, by which time I had been posted away from Kwun Tong. The Appellant appeared before my successor and maintained her, denial of the previous conviction. The case was adjourned before me for proof of the record.

The Appellant appeared before me again on 1st October 1991.The certificates by which the record was proved were explained to her, and she agreed that she had been sentenced. In mitigation, she said simply that she had old parents, that no one was farming the land, and that she would not dare to come back. She was sentenced to 6 months imprisonment, and the suspended sentences in Case No. NK13367/91 were activated to run consecutively. The effect was a total sentence of 22 months.

The Appellant applied for a review of sentence, and appeared again before me on 25th October. This time she produced a telegram which stated 'Mother critically ill'. She said that her uncle visited her, and she put forward various other matters in mitigation. I indicated to the Appellant that I was not inclined to accept a telegram as true but would adjourn for a further forthinght, if she wished, to give her a chance to get a medical report on her mother.

At this point the Appellant simply reiterated that she wanted a reduction of sentence. When I said that there was no point in imposing a suspended sentence, if it was then to be reduced, she began to protest that she had not understood the effect of the suspended sentence. I said that I did not accept it because I myself had passed the suspended sentence. I reiterated that I was prepared to adjourn. The Appellant evaded the issue again, so I refused her application for review. She now appeals against the sentence in this case, and the activation of the suspended sentences.

Reasons for Sentence

The Appellant is aged 19. She had a previous conviction, in July 1991, for the illegal immigrant offence, as well as one for resisting a police officer. She was given a suspended sentence, but nevertheless she returned to Hong Kong after only two months. At the time of passing sentence on 1st October 1991, there was nothing put before me which would have justified a departure from the usual sentencing guideline, and nothing to satisfy me that activation of the suspended sentences would be unjust.

I called for the notes of proceedings in Case No. NK13367/91 before passing sentence. In that case, the Appellant was represented before me by a solicitor instructed by the Duty Lawyer Scheme. She originally pleaded not guilty to the resisting charge. It was clear that she, as a first-time illegal immigrant, was only before the court because of the resisting charge; without it, she would have been repatriated. If she were to be found guilty of the resisting offence, then to follow the sentencing guideline on the immigration offence would produce injustice; in effect, she would be receiving the 15-months sentence for resisting. If, on the other hand, she were to be found not guilty of resisting, then, following R. v. Ng Tung Fong, Mag. App. No, 1296 of 1990, I would be free to depart from the guideline. Either way, I would be at liberty to impose a suspended sentence. I indicated as much to the Appellant's solicitor, for it seemed to me that this was the kind of case where I could properly give a 'Turner' ((1970) 54 Cr. App. R. 352) indication as to the type of sentence. After taking her solicitor's advice the Appellant pleaded guilty to the resisting charge.

The Appellant was accordingly given suspended sentences; the effect of them was explained to her and she said that she understood. The record does not show what dialect was used, but the interpreter working in my court at that time was conversant with Hok Lo and Chiu Chow, and often used these dialects to communicate with illegal immigrant defendants, so the appropriate dialect would have been used. There was certainly no suggestion then that the explanation of the effect of the sentences was not understood.

However, it now appears from A.G. v. Chan Wai-ming & Anor. A.R. 4/91 (2nd August 1991) that the view I took on 23rd July 1991 of the effect of the secondary offence was wrong. It follows that I should not have given the indication. Presumably the plea of not guilty to the resisting offence would have been maintained. The Appellant would either have been found guilty, in which case the trial magistrate would have been bound to follow the guideline; or she would have been acquitted, in which case the trial magistrate, following Ng Tung-fong,could have departed from it. The Appellant might very well still have received a suspended sentence.

As to the application for review, it is by no means unusual for art illegal immigrant, once sentenced, to apply on the basis that he has a sick or dying parent in China. I cannot say that this is always the product of advice from other prisoners. I was quite prepared in this case, as I have done in other cases, to consider any medical report that might be produced. I have before now departed from the sentencing guideline on the basis of medical reports which, frankly, could have been made by anyone with a piece of paper, a pen and a rubber stamp. I was not, however, prepared to accept a telegram. It is easy for anyone to produce an unverificable medical report, or what passes for one, from north of the border, but a telegram is just too easy. It was obvious from the Appellant's evasion of the question of adjournment that there was no real substance in the telegram.

When the Appellant appeared before me for sentence on 1st October, she was in the position of one who had been stupid or stubborn enough to fly in the face of a suspended sentence. She had no strong humanitarian considerations then or on her application for review. She could really expect no mercy. Nevertheless, in a sense, she got it, because I considered that to impose the guideline sentence and activate the suspended sentences would produce an excessive totality."

        The perfected grounds of appeal against sentencewere as follows:-

"(1)     The Learned Magistrate failed to attach sufficient weight, any or at all to the content stated in the telegram which amounts to strong humanitarian ground justifying departure from normal sentencing guideline.

(2)     The Learned Magistrate was wrong to activate the suspended sentence of which it was imposed upon an equivocal plea of guilty.

        (3)     In all circumstances, the sentence was wrong in principle and manifestly excessive."

4. Mr Lambert Lee for the appellant found himself in difficulties in arguing ground 2 because there had been no appeal against conviction. However, with the consent of the Crown, and with the leave of the court, he was allowed to appeal against the conviction in respect of the resisting arrest charge out of time, in view of the remarks of the magistrate that he should not have given an indication of the type of sentence he would impose. That conviction was therefore set aside and in view of the fact that the appellant had spent a considerable time in custody already, counsel for the Crown very properly informed me that she would not be seeking a re-trial.

5. That being so, the magistrate would have found himself in very much the same position as the Court of Appeal in R. v. Ng Tong Fong MA 1296/90.

6. In that case, the appellant NgTung-Fong appeared before the Acting Principal Magistrate in North Kowloo Magistracy for trial on a charge sheet which contained two charges. The first remaining in Hong Kong, without the authority of the Director of Immigration, having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115; and the second possession of an offensive weapon. He had pleaded guilty on his first court appearance on the 27th July to the first charge and not guilty to the second. His trial was fixed for the 14th August 1990. On that day, the prosecution informed the magistrate that, in the light of Ng's plea to the first charge, they would not proceed with the second and to effect that they offered no evidence on it.

7. Having been convicted on his own plea on the Immigration Ordinance charge the megistrate, considering the guidelines in R. v. So Man King & Others [1989] 1 HKLR 142, imposed a sentence of 15 months' imprisonment. He found no "strong humanitarian reasons" for reducing that which he considered to be the proper sentence. He appealed against that sentence and the appeal judge directed the matter to be argued before the Court of Appeal. At the conclusion of the hearing, the Court of Appeal allowed the appeal and imposed upon the appellant such sentence as would effect his immediate release.

8. Silke, V.-p. giving the judgment of the court, said at page 9 of the judgment:-

"While he was properly prosecuted, being within the existing prosecution guidelines, having been charged with another offence, nevertheless, once he was found not guilty of that second offence, it was opened to the magistrate to discount the normal guideline sentence, giving the peculiarities of that case before him. Without the possession charge the appellant would not, according to policy, have been prosecuted in the first place. Once that charge went he was in the unfortunate position of someone who was being prosecuted for an offence, which, in the normal course, would have led to his unprosecuted repatriation to China. That a discount would have been proper is emphasized by that which we are now told is the current prosecution policy i.e.: not to prosecute an illegal immigrant simply on the basis that he has committed a second offence of entering Hong Kong or remaining in Hong Kong illegally. It is to be hoped that for the future a much closer scrutiny will be applied to prosecutions under the Immigration Ordinance so as to avoid the manifest unfairness to individuals resulting from the prosecutions of persons who lie outside prosecuting policy causing one individual to be dealt with in a manner different from another. This would also have the meritorious effect of saving the time of the court.

As the appellant had been in custody since 27th July 1990 we considered it proper that we should make the order which we did which effected his immediate release. We would add that Mr Fung has placed a humanitarian aspect before us, this having arisen over the short adjournment of this appeal. There are papers now before us in relation to an illness suffered by the appellant's mother and we have seen the document relating to that illness said to be from the People's Hospital of Engping entitled 'A Sick Leave Certifiate We were not persuaded that the strong humanitarian considerations to which So Man King made reference existed here and we have not based our decision on that."

9. The present case is not identical to Ng Tong Fong's case. For one thing, the appellant has not been found not guilty on the resisting arrest charge. The position is that the Crown are not seeking a retrial. There is no reason, therefore, for saying that the appellant was prosecuted outside the prosecution policy. However, a more significant difference between the two cases, is that the appellant was treated very leniently on the 23rd July 1991 when she was given a suspended sentence. When she was thus repatriated to China, having been placed on a suspended sentence, and having had the terms of the suspended sentence explained to her, she knew very well that if she returned to Hong Kong and was convicted of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong she would be in breach of that suspended sentence.

10. I did not think that it would be appropriate to, in any way, interfere with the activated term of sentence.

11. However, in these special circumstances of this case, I was of the opinion that an overall sentence of 21 montns, in respect of the two remaining in Hong Kong offences, was excessive.

12. I decided that the best course to take, to ameliorate the harsh effect of the sentences, was to order that the second sentence run concurrently with the first. This will mean in effect that the appellant will only serve a total sentence of 15 months imprisonment.

13. So far as the first ground is concerned, although it had been stated that the mother of the appellant was critically ill in the telegram which was produced before the magistrate on the 25th October, the present information is that she is still in hospital but there is no suggestion in the certificate produced before me that she is in a critical condition. I did not consider that the information placed before me justified any interference with the sentences on humanitarian grounds.