THE QUEEN v. NG KWOK PUI

Headnote

    Appropriate sentence for breach of Section 38(1)(a) and (b) of the Immigration Ordinance Cap. 115.

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J U D G M E N T

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Cons, Ag. C.J. delivered the judgment of the Court:

1. These nine appeals are from sentences imposed by two Magistrates for offences contrary to Section 38(1)(b) of the Immigration Ordinance Cap. 115 ("the Ordinance"), that is remaining in Hong Kong without authority after having unlawfully landed here. Section 38(1)(a) makes it an offence to land in Hong Kong without appropriate permission. The appeals have been reserved to this Court under Section 118(1)(d) of the Magistrates Ordinance Cap. 227 in order that this Court may consider giving fresh guidance with regard to appropriate sentences for offences under the former section.

2. In October 1980 Government abandoned its so called "Touch Base" Policy, by which asylum was automatically granted to any illegal immigrant who had managed to evade the perimeter defences of the authorities and gain a foothold in the urban areas.

3. Thereafter any illegal immigrant, wherever apprehended in the territory, was simply repatriated as soon as possible to the Mainland. No prosecutions were brought under the Ordinance unless the immigrant was charged at the same time with the commission of some other offence, for example the possession of a forged identity card contrary to Section 7A of the Registration of Persons Ordinance Cap. 177 or using that of another person contrary to Regulation 12 of the Registration of Persons Regulations.

4. Simple repatriation appearing to have little deterent effect, in April 1983 a further exception was made, to prosecute as well those who had come before, that is those who had successfully entered Hong Kong on at least one other occasion, had been repatriated and yet managed to find their way here again. They were prosecuted whether they has committed any other offence or not.

5. Although initially effective, the change had no long term effect. Over the intervening years the number of illegal immigrants detected continued to increase, so that by the end of 1987 the annual figure was more than double what it had been in 1984 and the tendency appeared to be continuing.

6. In early May this year, - newspaper reports put it as the second day of the month -, a further change was introduced. Action was to be taken against any illegal immigrant found as one of a "sizeable group" - that is six or more persons - on a construction site or other place of employment such as a factory, restaurant or farm, regardless of whether the immigrant had committed any other crime or had previously been caught and repatriated. More recently the limit of the sizeable group has been reduced to three. It was as a result of the policy refinement in May that eight of the nine Appellants found themselves before the Magistrate. Seven had been arrested in police raids at the Parkview Garden Construction Site by the Tai Tam Country Park and the eighth had been caught at the Tai Woi Estate in Tai Po.

7. In the course of submissions we have been referred to many authorities that have dealt with the appropriate sentence for offences under Section 38(1) of the Ordinance and the related offences of possession of a forged identity card or using that of another person.

8. Mr. Cheng Huan for the Appellants has argued strongly that there is a significant legal and moral distinction between the two kinds of offence. He suggests, borrowing the words of O'Connor J.⁽¹⁾, that commission of the latter offences enables the culprits "to masquerade as persons entitled to be in "Hong Kong", whereas persons such as the Appellants make no such pretence.

9. It has to be acknowledged that there may be circumstances in which the use of such cards will be an aggravating feature, but in our view the authorities draw little, if any, distinction in the ordinary run of the mill cases. The substantial element in sentencing for all three offences is the unlawful presence in Hong Kong. This is apparent even in the decision of this Court in The Queen v. Chan Shau Kin⁽²⁾, the authority on which Mr. Cheng Huan principally relies for the comment that -

"It is not merely the unlawful entry into Hong Kong which is to be punished: that may eventually be dealt with by repatriation: what is being punished is the resorting to forgery."

10. However the remainder of the judgment indicates a considerable widening of the consideration, so much so that the following year Macdoupall J: was able, quite properly in our judgment, to observe that "it is plain from the tenor of the judgment that the object of imposing a severe sentence is to deter would be illegal immigrants"^(3).

11. The circumstances of the average illegal immigrant are likely to vary little between themselves or to have anything substantial to offer by way of mitigation.On the day that Mr. Upham dealt with the eight of the present Appellants a total of sixty-seven defendants pleaded guilty to the same offence before him. He was able to say in the reasons that he later pave for the sentences that he had imposed:-

"Though individually each defendant differed, there was the common factor each was male, each had illegally entered Hong Kong to work and each was found on a counstruction site."

12. We may add that almost certainly each was activated by a desire to benefit his family on the Mainland. But generally speaking there is nothing further that can be said. Nor is "there in relation to any of the present Appellants, whose individual circumstances have been brought to our attention. In situations of this kind this Court has upheld sentences of 15 months' imprisonment: The Queen v. Ng Sui Ming⁽⁴⁾ and recently in The Queen v. Lau Chung Kwan⁽⁵⁾ approved the same period by reference to the decision of O'Connor J. In The Queen v. Lam Shui Leung⁽¹⁾.

13. In Western Magistracy, where the bulk of these charges are habitually brought, records analysed by Mr. Duckett who appears for the Crown show that sentences of a lesser length have been imposed generally for at least the last two years. A rough band extends from 6 to 12 months, but the most common sentence has been one of 9 months. Then, starting in April this year and continuing over the following months, there has been a marked tendency to increasingly heavier sentences with most of those imposed in June being of the order of 15 months. At the same time the figures of illegal immigrants detected in June and July have plummeted dramatically, confirming the view that a period of 9 months is not a sufficient deterrent and that the period of 15 months accepted by this Court is more likely to achieve the desired effect. It should therefore continue to he used as the basic guideline.

14. The guideline already allows for the almost inevitable plea of guilty, but voluntary surrender to the authorities should warrant a substantial discount, and strong humanitarian considerations should always be honoured, even to the extent sometimes of suspending whatever prison sentence is otherwise thought appropriate. On the other hand, the Court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence, such as the actual use of a forged or other person's identity card to obtain some particular benefit.

15. We have to add that so far as questions of sentence are concerned we see no reason to differentiate according to the circumstances in which an illegal immigrant is arrested. The mischief at which the legislation is aimed appears, to us to be the same whether the immigrant is employed, with many others or by himself or whether he is even employed at all. Thus if the authorities continue their present policy, an illegal immigrant who accepts engagement on a construction site where there are at least two other immigrants will, if apprehended there, find himself in a vastly different situation from one who for example chances to find more individual employment or is perhaps arrested on his day off. Such almost incredible disparity of treatment will no doubt give rise to an understandable sense of grievance in a man who is sentenced to 15 months' imprisonment. But it is one that is not in the power of the Court to remedy.

16. Applying the guideline we have just confirmed to Appeal No. 408, the Appellant being So Man King, we do not find the sentence of 18 months' imposed by Mr. Crawshaw to be inappropriate. The Appellant had already entered Hong Kong illegally on two previous occasions. On the second, for which he was arrested on the 9th October last year, he was charged and sentenced to 9 months' imprisonment. He can have been released from prison hardly more than one month before he was back for yet a third time. His appeal is dismissed.

17. The other eight Appellants, who were sentenced by Mr. Upham to 15 months' imprisonment, have all clear records, that is this is the first time that they have been caught as illegal immigrants. But for the recent change in policy, a change not publicly announced until after they had been arrested, they would have been simply repatriated to the Mainland, in the way that we understand a great number were repatriated earlier this year following, similar raids by the police upon constructor sites. Instead the Appellants were charged.

18. The difficulty which faces courts in such a situation is obvious. The legislature has decreed that it shall he a criminal offence to come into or remain in Hong Kong unlawfully, to he punishable by a substantial fine and imprisonment. The courts must apply that law, and this Court has laid down that a Magistrate upon whom the principal responsibility falls in such cases, should regard sentences of 15 months as appropriate for most occasions. On the other hand the executive has ensured that for the past eight years the law should for the most part be a dead letter and that in particular, those in the position of the Appellants should not be punished at all.

19. We express no opinion as to whether the executive ought, as a matter of practice, to give public notice of any intended change in policy. That is a matter entirely within the executive's own discretion. But we are satisfied that the fact that the authorities have, by a well publicised course of conduct over many years, lulled a particular class of persons into a justifiable sense of security that the law would not be strictly enforced so far as they are concerned, and then suddenly proceeded to enforce the law without giving those persons any opportunity whatsoever to reconsider their position, is a factor that may properly be taken into account when assessing sentence.

20. For that reason alone we allow the appeals of the eight remaining Appellants and vary the sentences imposed on them to sentences of 6 months' imprisonment.

(1) The Queen v. Lam Shui Leung [1987] H.K.L.R. 57 at 58F

(2) Criminal Appeal 934 of 1981 unreported 4th January 1982

(3) The Queen v. Chan Wah Ying Maginstracy Appeal 294/83 unreported 7th April 1983

(4) Criminal Appeal 362 of 1985 ureported 20th November 1985

(5) [1987] H.K.L.R. 203