THE QUEEN v. WONG CHUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 548 of 1989

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BETWEEN

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REASONS FOR JUDGMENT

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1. The appellant was convicted on the 8th March 1989 on his own plea of having landed in Hong Kong unlawfully and remaining in Hong Kong without the authority of the Director of Immigration. He had a clear record and was sentenced to 15 months imprisonment.

2. He applied for leave to appeal out of time on the basis that he is now in possession of certain facts which were not within his knowledge at the time when sentence was passed. No objection being raised by the Crown, I ordered that the time for him to give his Notice of Appeal may be extended.

3. It is conceded by counsel for the appellant that the present sentence of 15 months imprisonment is well within the guideline laid down by the Court of Appeal in R v. So Man King Mag. Appeal No. 408/88. However, my attention has been drawn to the judgment of the Acting Chief Justice in that case at page 6 when he said :-

"The guideline already allows for the almost inevitable plea of guilty, but voluntary surrender to the authority 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."

Mr Dixon Tang for the appellant argues that I am entitled to reduce the present sentence on humanitarian grounds which have now come to light. The appellant came to Hong Kong illegally on the 28th February 1989 hoping to earn money enough to purchase an air-ticket to Brazil as his cousin who was living in Brazil and operating a supermarket and restaurant there brad, in or about September, or October 1988, applied for the appellant to immigrate to Brazil and the appellant himself had, in or about November 1988, also applied to the Immigration Department in China for immigration to Brazil. After the present conviction, the appellant received a letter from his father informing him that he had received a notice from the authorities in China by which the appellant was informed that his application for immigration had been approved and that he should go to the immigration authorities in China on the 5th day of April to collect his passport. This letter has been produced before me together with a certified translation, no objection being raised by the Crown. Mr Dixon Tang argues that it is within the appellant's knowledge that the said notice would only be valid for a period of 9 months.  If the appellant did not (personally collect the passport) within 9 months, the passport would be cancelled. Furthermore, it would be very difficult for the appellant to obtain another passport in future. In other words the deadline for collecting the passport would be the 5th January 1990. On the other hand, if the appellant had to serve the present sentences of 15 months, the earliest date that he would be released from prison, after having taken into account the normal discount, would be about the 8th January 1990. Even though the difference between the deadline for collecting the passport and the date of release from prison are only three days, Mr Tang points out that if he has to serve his sentence, he would not be able to collect his passport. In the circumstances, he asks the court to exercise an act of mercy towards the appellant.

    The Crown does not wish to be heard on this matter and I have decided that justice would be served in the circumstances of this case by the sentence being reduced by one month.