HKSAR v. TONG KIN MAN

HCMA 384/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 384 OF 2002

(ON APPEAL FROM ESCC 4166/2001)

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J U D G M E N T

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1. On 21 January 2002, this Appellant appeared before I. S. C. Candy Esq. in the Magistrate's Court at Eastern on two charges. He pleaded guilty to the charge which was of remaining without authority having landed unlawfully contrary to s.38(1)(b) of the Immigration Ordinance, Cap. 115. But he pleaded not guilty to the charge which was of taking a conveyance without authority contrary to s.14(1) of the Theft Ordinance, Cap. 210.

2. The Magistrate sentenced him to 1 year's imprisonment on the charge of remaining without authority, and remanded him to appear in the same court on 28 January 2002 for mention in relation to the charge of taking a conveyance without authority.

3. On 8 March 2002, the Appellant was acquitted after trial on the charge of taking a conveyance without authority. The Appellant now appeals against his sentence on the charge of remaining without authority. He is in the same position as the Appellant in the case of R v. Ng Tung Fong [1992] 1 HKCLR 114 about whom Silke VP said this at page 119:

"While he was properly prosecuted of 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 open to the Magistrate to discount the normal guidelines sentence given the peculiarities of the 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 cause, 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 that is: not to prosecute an illegal immigration simply on the basis that he had committed a second offence of entering Hong Kong or remaining in Hong Kong illegally."

4. In his Reasons for Sentence, the Magistrate who sentenced the present Appellant to one year's imprisonment said this:

"The Defendant was charged with Taking a Conveyance without Authority (Charge 1) and Remaining Unlawfully in Hong Kong (Charge 2).

He admitted Charge 2 and was sentenced by me following the guidelines in So Man-king but allowing a small reduction because of his clear record.

He was acquitted after trial of Charge 1.

In retrospect it would have been better practice to have adjourned sentence to the trial court pending the trial on Charge 1."

5. That practice not having been followed in the present case, the best justice I can do is to allow the Appellant's appeal against sentence so as to reduce his sentence to the extent necessary to effect his immediate release. I allow this appeal accordingly. I should add that the prosecution concedes that the appeal against sentence should be allowed.