HKSAR v. LAM CHOR KAI

HCMA 1222/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1222 OF 2007

(ON APPEAL FROM KCCC 6625/2007)

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J U D G M E N T

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1. This case started off as an appeal against conviction.  The appellant pleaded guilty to an offence of theft and to unlawful remaining.  For the unlawful remaining, he was sentenced to 15 months' imprisonment in the usual way.  For the theft, he was sentenced to 4 weeks' imprisonment consecutively.  He has only sought to appeal in respect of the unlawful remaining and what he did was to write to the court saying he was not an illegal immigrant, he was an over-stayer, and despite some suspicious delays and the like, eventually he has produced a Chinese two-way permit and in that there is a chop showing that he entered Hong Kong lawfully in 2003.  He has told a story about a policeman telling him that if he admitted he was an illegal immigrant, he would be repatriated immediately and that is why he told the lie to the effect that he was an illegal immigrant and that is why, despite being helped by two duty lawyers, he pleaded guilty and admitted some brief facts which he now says are not correct.

2. This situation is one I have come across on a number of previous occasions and it clearly arises because people in the position of the appellant judge, in ignorance of our guidelines as to sentencing for immigration offences, that it is more serious to have been living in Hong Kong unlawfully as an over-stayer for five years than it is saying they  only sneaked in yesterday. I find it easy to understand why they should think that.

3. There is no question here of the plea being a nullity or the like.  Whether or not the appellant has told me the whole truth is something I will never know.  He is clearly someone who will say anything that he thinks will suit him at any particular time.  The only piece of help I can find in this situation is the Chinese two-way permit.  That has been sent off to the Government Chemist and he says that there is no sign of tampering with it by photo substitution, page substitution or the like.  As regards its authenticity, the Government Chemist says he cannot comment on that in the absence of a control sample.  I am not going to adjourn the case for control samples to be fetched.  I am told this is a process that takes months.  In a sea of uncertainty, it is the only plank I cling to because it looks a perfectly ordinary Chinese two-way permit to me and it has not been tampered with.

4. So I will act on the basis that the appellant came here lawfully in 2003 and was an over-stayer and not an illegal immigrant.  So what shall I do in those circumstances?  The answer is this:  I gave him leave against sentence out of time.  I have not sent the case back to the magistrate because the magistrate assiduously provided some reasons for sentence without being asked for them.  I judge that I do no injustice if I pass the sentence that was merited for remaining in Hong Kong as an over-stayer for five years.  Ironically, I rather agree with the appellant's original perception that such a long overstay is probably as mischievous and as grave as sneaking in and being caught the next day but I cannot substitute my personal view and go behind the guidelines.   

5. Following the guidelines I judge a sentence of 9 months' imprisonment would be right for his overstay.  If that is the case, then, in my opinion, it is right that I reduce the sentence of 15 months to 9 months today to reflect what I perceive to be the reality of the situation, ignoring that through his fault, his lies, the incorrect label has been attached to his wrongdoing. 

6. Accordingly, the appeal against conviction is dismissed and the appeal against sentence is allowed to the extent that the sentence of 15 months' imprisonment is reduced to one of 9 months' imprisonment.