THE QUEEN v. LAW PING

Headnote

Sentence- factual basis for sentence - defendant putting forward a not incredible version of facts different from that put forward by prosecution - hearing to resolve issue if it is a matter which would affect the sentence.

In court conduct of defendant - not a ground for increasing sentence.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL No. 647 OF 1988

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J U D G M E N T

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1. The appellant pleaded guilty to remaining in Hong Kong without permission after having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance.

2. The appellant pleaded guilty and agreed he had entered unlawfully from China. However he added that he had surrendered himself to a police officer. The magistrate decided to adjourn for that matter to be investigated, and he warned the appellant' that the hoped he was not wasting time.

3. Later the prosecutor informed the court that the appellant was stopped and asked for proof of his identity, which he could not provide, and that he then admitted he was an illegal immigrant. The appellant said that was not so, and repeated that he had surrendered.

4. The learned magistrate then told the appellant that he did not believe him, and that he had been wasting the time of the court, the Immigration Department and the police. He added that persons who lie to the effect that they surrendered should receive no mercy from the court. In his sentencing reasons he says that he imposed a stiffer sentence than the normal tariff because the app,ellant tried to mislead the court.

5. Where there is a dispute between the prosecution and the defence, as to a factual matters which would affect sentence, the court must resolve the dispute. If the defendant's version is not inherently incredible, the court before sentencing on the basis of the prosecution version must give the defendant, the opportunity to test the prosecution version by cross examination, and to put forward his own version by way of evidence, R v. Walton (1987) 9 Cr. App. (S) 107. The magistrate did not do so, and accordingly I would allow the appeal.

6. The magistrate increased what he considered would otherwise be the appropriate sentence, because of the court conduct of the appellant. It is wrong to do so, R v. Scott (1983) S Cr. App. R. (S) 90. That was a case concerning court conduct on the issue of guilt, but the same principle should apply as regards conduct relating to sentence of course, as stated in R v. Scott, a defendant's court conduct may affect the weight that the judge decides to give to mitigating factors.

7. I give leave to appeal out of time against conviction, set aside the conviction and sentence and remit the case to Western Magistracy for plea to be taken anew by a different magistrate.