THE QUEEN v. WONG HON-KEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 719 OF 1988

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J U D G M E N T

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1. The appellant was convicted on his own plea on a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, an offence contrary to section 38(1)(b) of the Immigration Ordinance.

2. The appellant entered Hong Kong on the 3rd July 1988 illegally from China, but he surrendered himself to the police on the same date. He had previously come to Hong Kong illegally from China in October 1986 and was arrested two days after his arrival and sent back to China on the 4th November 1986.

3. In mitigation he told the Magistrate that he was 25 years of age, married, unemployed, in poor health and had a wife and children to support. The learned Magistrate sentenced him to imprisonment for 15 months and in his reasons for sentence says that he took into account the factors urged by the appellant in mitigation.

4. Mr. Tong, who appears for the appellant today, points out that there is nothing in the learned Magistrate's findings to indicate that he weighed as a mitigating factor the fact that the defendant surrendered himself. Mr, Tong submits that if surrender is a mitigating factor, as was so held by the Court of Appeal in The Queen v. So Man-king and others, (Magistracy Appeal 408 of 1988), then surrender on the same day must entitle an illegal immigrant to a substantial discount, I agree. It was also said in So Man-king that whilst the normal sentence for this offence should be imprisonment for 15 months, that an aggravating factor is a previous entry. The appellant, as I have just mentioned; entered Hong Kong illegally on a previous occasion, so the learned Magistrate gave him a degree of leniency in that regard by not adjusting the normal 15 months upwards to take account of the previous entry.

5. Taking account of both those factors, that is the aggravating factor and the mitigating factor, 1 think that the sentence must be reduced and I quash the sentence of 15 months and substitute therefor sentence of imprisonment for 9 months. The appeal is allowed to that extent.