HKSAR v. SHEUNG LAM

HCMA1199/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1199 OF 1999

(ON APPEAL FROM FLCC 2124/1999)

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J U D G M E N T

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1. The appellant was convicted of one charge of assaulting a police officer and one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully on 22 October 1999. He was sentenced to 14 days' imprisonment in respect of the first charge and 15 months' imprisonment in respect of the second, the two sentences to be served consecutively.

2. The facts were that the appellant was arrested at about 8:15 am on 20 October 1999 on a hillside at Lin Tong. He admitted then that he had entered Hong Kong illegally. He was arrested and handed over to Sha Tau Kok Police Station. Later that morning, the appellant claimed not to be feeling well and was sent to North District Hospital for treatment. There he was seen by a doctor where he was treated for a wound to the left side of the skull which was found to have been healed and was referred to Outpatients for further treatment by way of anti-infection injection. At this point, it seems that the appellant requested to see his medical report but that request was refused by one of the police officers escorting him. The appellant was at that time, it seems, in restraints - handcuffs and chain being the method usually used to transport ambulatory prisoners. A dispute arose between the appellant and the police officer in the course of which the appellant kicked the police officer in the thigh once and was subdued.

3. The policy of the prosecution in Hong Kong is set out in R. v. Lam Chi-wah and Others [1992] 1 HKCLR 249 where the policy was set out as follows :-

"Since November 1990 the categories of illegal immigrants who are prosecuted for remaining in Hong Kong without the authority of the Director, having landed unlawfully, under s.38(1) of the Immigration Ordinance (Cap.115) are:

(1) All IIs found at places of employment to be prosecuted regardless of the number found.

(2) All IIs committing offences whether immigration related or not. ..."

The commission by the appellant of the offence of assaulting a police officer brought him within limb (2) of this prosecution policy and he was then prosecuted for not only the assault on the police officer, but for unlawfully remaining in Hong Kong having entered illegally.

4. Mr Chan argues that but for the assault, the appellant would have been repatriated to China and, therefore, to impose upon him a 15 months' sentence of imprisonment for the unlawfully remaining charge - that being the normal penalty imposed for that offence - is to visit upon him an unfair burden. Mr Chan argues that the policy of prosecution has been so strictly imposed that it works unfairly upon the interests of the appellant. I am unable to agree.

5. It is possible to argue, as Mr Chan did, that an offence could be of such a minor nature that it was unfair that it should trigger the prosecution for unlawfully remaining. In this case, the triggering offence was one of assault against a police officer. This is the type of offence which the courts have said unequivocally warrants an immediate custodial sentence. The applicant was found guilty of that offence and a proper sentence of 14 days' imprisonment was imposed for it. It is not a valid argument to say that the offence was of such a minor nature that it unfairly triggered the prosecution for the second charge.

6. I am not satisfied that the application of the well-stated prosecution policy, on this occasion, visits any unfairness or injustice upon the appellant in respect of the period of imprisonment for which he was sentenced in respect of the second charge. His appeal against conviction and sentence are dismissed.