THE QUEEN v. CHONG YUK LUN

Mag. App. No. 129/90

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HEADNOTE

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Breach of conditions of stay - aggravating circumstances - offender taking up employment and length of overstay. Immediate custodial sentence not wrong in principle.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 129 OF 1990

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JUDGMENT

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1. The appellant pleaded guilty before Mr E.P. Sweeney to a charge of remaining in Hong Kong after the 27thOctober 1989, the date upon which he was under the terms of his conditions of stay, required to leave. He also pleaded guilty to a charge of taking up employment in breach of such terms. He was sentenced to 10 weeks' imprisonment on the 1st charge and fined $500, in default 7 days' imprisonment on the 2nd charge. He now appeals against the sentence in respect of the 1st charge.

2. The brief facts were that on the 9th January 1990, a police party visited premises at Sun Po Trading Company Limited in San Po Kong and found three Chinese males and three Chinese females working on the premises. The appellant was amongst this group as was his wife. They were all found to be visitors from China who had overstayed and were charged with overstaying and working breaches. They all pleaded guilty.

3. The Magistrate imposed terms of imprisonment which equated to the lengths of time the defendants had overstayed. The maximum penalty for breaches of terms of conditions of stay is $5,000 and imprisonment for 2 years. The magistrate stated that it was his policy to impose a $500 fine on visitors who took up work within time limit of their visas. There can be no complaint about this approach. He went on to say in his Statement of Findings :

"However once they overstayed and worked, they are ignoring all rules and are moving from visitors category into illegal immigrants."

4. It is the appellant's submission that the Magistrate was wrong in principle in thinking of the appellant as an illegal immigrant thereby justifyingthe imposition of an immediate custodial sentence; that he did not take into account the appellant's clear record and plea of guilty in fixing sentence and that he should have in any event suspended any term of imprisonment imposed.

5. I am asked to say that it is wrong in principle to impose an immediate custodial sentence on an overstayer with a clear record who pleads guilty.

6. The Magistrate was wrong to place the appellant into the illegal immigrant category. Persons who enter Hong Kong legally and then overstay do not thereby become illegal immigrants and must not be regarded as such. However, although the Magistrate used the words "illegal immigrant" he did not in fact go on to treat the appellant as such when it came to sentence. The tariff sentence for an illegal immigrant is 15 months' imprisonment, the magistrate in this case imposed only a term of 10 weeks.

7. The appellant was a legal visitor from China and would have been well aware of the conditions with which he had to comply - these were not to take up employment and to leave on the date specified. He elected to blatantly ignore these conditions.

8. I am told by Mr MacLeod who appeared for the Crown that the Hong Kong government imposes a time limit, usually of 3 months, on visitors from China so as to keep control of the numbers of such visitors in Hong Kong at any one time. If the system is to work, it is important that the visitors observe the conditions imposed.

9. The Magistrate was right to regard the offence as aggravated by an overstayer taking up employment and by the length of the overstay. In my view it is not wrong in principle to impose a custodial sentence on first offenders who plead guilty to offences of this kind. The Magistrate has the power to suspend any custodial sentence so imposed on an overstayer where it is considered that the facts justify such a suspension.  Obviously, the circumstances can vary considerably, and each case needs to be looked at on its own facts. Someone who overstays for 2 or 3 days and does not take up employment is clearly in a different category from someone whotakes up employment and stays for several months.

10. The Magistrate equated the length of sentence to the length of overstay. While in this case, when the totality of the sentences imposed is considered, it cannot be said that the term of 10 weeks' imprisonment on the first charge was wrong in principle or manifestly excessive, the formula the Magistrate chose to adopt should not be regarded as a tariff in all cases of this kind. This could lead to some very unacceptable results. This appeal is dismissed.