HKSAR v. LI TAK LUNG

HCMA 18/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 18 OF 2002

(ON APPEAL FROM FLCC 2038/2001)

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J U D G M E N T

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1. The Appellant pleaded guilty before the learned Magistrate to one charge of remaining in Hong Kong without the authority of the Director of Immigration contrary to S.38(1)(b) of the Immigration Ordinance Cap.115.

2. The Appellant was intercepted by police at the Man Kam To Security Fence at Ta Kwu Ling and he admitted sneaking into Hong Kong about 5 minutes prior to being stopped, by crossing the Shenzhen River. There was also found on him a China Identity Card in the name of Lee Hung Kwong, which the Appellant said belonged to his brother.

3. The Appellant had two previous convictions in Hong Kong, one for previous unlawful entry into Hong Kong, which is a similar charge to the present one he is facing and the other conviction was for theft, and he received a total of 15 months imprisonment for those two offences on the 26th of May 2000. Obviously, after serving that term of imprisonment, he decided to come back into Hong Kong again and committed the present offence.

4. Mitigation was urged on behalf of the Appellant before the learned Magistrate by his lawyer that he had a medical condition, particularly his mental state, and so the learned Magistrate called for a psychiatric report as the Magistrate had noted that there was a medical report dealing with the Appellant's physical condition in the file.

5. After listening to mitigation advanced on his behalf by an experienced counsel representing him, the learned Magistrate decided that the sentence of 15 months imprisonment was appropriate in the circumstances, and he also said, in his reasons for sentence, that he took into account what had been advanced in mitigation on behalf of the Appellant but he could find no discernable humanitarian factors that would serve to reduce the sentence. The learned Magistrate pointed out quite correctly that this being the Appellant's second conviction for a similar offence, he would have been justified to sentence the Appellant to 18 months imprisonment which I totally agree with, but the learned Magistrate very generously decided to sentence the Appellant to 15 months because he was intercepted shortly after crossing the boarder. If he had sentenced the Appellant to 18 months imprisonment I would not have interfered with that sentence in these circumstances.

6. The Appellant appeals against that sentence on the ground that although he does not consider the sentence to be manifestly excessive, or too severe, he asks for a reduced sentence on the ground that his health condition is poor. I do not consider that this is a matter I should consider as it has already been advanced before the learned Magistrate, and, as I have said, the learned Magistrate took a very generous view in sentencing the Appellant.

7. I can see no grounds to interfere with that sentence and so the appeal is dismissed.