THE QUEEN v. NG KAM WING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1726 of 1990

___________

BETWEEN

____________

-----------------

JUDGMENT

-----------------

1. The appellant pleaded guilty in the magistrate's Court to two charges, one of Resisting Arrest contrary to Section 36 of the Offences Against the Person Ordnance any the other of Regaining in Hong Kong without the Authority of the Director of Immigration after having landed unlawfully contrary to section 38 (1) (b) of the Immigration Ordinance.

2. The facts put before the Magistrate and with which the appellant agreed were that two police officers on plain clothes duty on the 10th November last year saw the appellant and another male acting suspiciously in the Yuen Long area. The police officers approached then, produced their Police Warrant Cards and asked to check the identity of the two males. This checking revealed that both were illegal immigrants. The police officers declared the arrest of them whereupon this appellant used both his hands to push away the officer who attempted to arrest him and tried to escape. The officer chased him, caught him and arrested him.

3. The other illegal immigrant was repatriated to China without being charged with the immigration offence. This appellant was charged because of the additional offence he committed in resisting arrest. He had a clear record and the Magistrate sentenced him to imprisonment for 7 days on the resisting of arrest charge and 15 months imprisonment on the illegal immigrant charge and ordered that the sentences run consecutively.

4. On his appeal against the sentence the appellant originally relied on two grounds but has since abandoned one in the light of the decision in the Attorney General v. CHAN Wai-ming, application to Reivew No. 4 of 1991.

5. His other ground is humanitarian base on circumstances he says have arisen since his imprisonment. The ground overstates the case in that it alleges that one of tie circumstances which has changed since his imprisonment is that his wife has decided to divorce him and threaten to have the custody of his daughter surrendered to a third party. The letter tendered in support of this from his wife merely says that since he has been away she has thought about divorcing him and surrendering the child. Another letter was tendered dated May, this year in which a relative or neighbour has written to him saying that his wife has gone insane and that whereabouts are unknown. But no further information has been out before me as to what enquiries tile appellant has made about her present circumstances. It was alleged in the letter that the wife had been consulted by a doctor but no attempt was made to put before the court anything by way of a certificate by the doctor to support the allegation of a change in circumstances.

6. This is not a case calling for alteration of I can or I am warranted the sentence on humaniltarian grounds. In any event, an interference with the sentence at this stage would simply mean that the appellant goes home about one month earlier that he otherwise would and there is nothing to indicate that he needs to return a month earlier.

7. There is, however, one matter not in the grounds of appeal of which I think I should take cognisance. This appellant would not have been prosecuted for the illegal immigration offence has he not pushed the officer at the time of his arrest. It was quite proper for the Magistrate to order that the sentences run consecutively where a person commits an offence and their resists arrest for that offence. But under the present policy he would not have been prosecuted for the immigration offence had he not done that pushing. I think that, in this case, the proper order should have been an order that the sentences be served concurrently. I allow the appeal to the extent that instead of the sentences being served consecutively, they will be served concurrently.