THE QUEEN v. LIT KIN MING AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL No. 652 OF 1989

(On Appeal from Kwun Tong magistracy Case No. 2255/89)

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BETWEEN

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J U D G M E N T

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1. On the 5th May 1989, the appellants together with another defendant (D3) were convicted after trial of an offence of "Obtaining services by deception" contrary to S.18A of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong. The particulars of the charge are that they on the 14th April 1989, at Kowloon, dishonestly obtained for themselves the services from Lau Hoi-sau, namely a taxi service travelling from Kwun Tong pier to Yau Yu Bay by a deception, namely by falsely representing that they would pay the taxi fare of around $HK35 to the said Lau Hoi-sau, for the said service.

2. The 2nd appellant who is unrepresented in respect of his appeal against conviction maintains that his conviction should be set aside on the basis that there was no evidence or no sufficient evidence to support the conviction. He was unable to put forward any telling arguments in this respect and it is clear from a perusal of the record that there was ample evidence upon which the Magistrate was able to convict him.

3. Both appellants are represented by Mr Dixon Tang on the instruction of the Director of Legal Aid in respect of their appeals against sentence.

4. The learned Magistrate in passing sentence upon the appellants made the following remark :

"In this case, I find no reason to depart from the guidance of the High Court that an immediate sentence of imprisonment of fifteen months in the case of illegal immigrants from China found unlawfully in Hong Kong was appropriate. I have considered the cases of So Man-king & others v. R. Magistracy Appeal 408 of 1988 (unlawful presence ) and of Ng Shau-yung v. R. Magistracy Appeal 244 of 1988 (unlawful presence with the benefit of a wrongly obtained identity card). I held, therefore, that there was no other way of dealing with the Appellants and D3 than by an immediate sentence of imprisonment. I therefore sentenced each of the defendants to an immediate term of fifteen months."

5. The first ground of appeal is that it was wrong for the learned trial magistrate to sentence the Appellants as if they had been convicted of an immigration offence. It is submitted that the course adopted by the trial magistrate was erroneous and reference has been made to the case of Lane v. Auckland City Council [1975]1 N.Z.L.R. 353, a Court of Appeal decision in Wellington. In that case, the appellant was convicted after of the offence of driving a motor vehicle with an excess of alcohol. In sentencing, the learned magistrate took into account the appellant's manner of driving. The appeal was dismissed. Mr Justice Roper said at p.355 of the report :

"In our view McMullin J. was perfectly right. It is a well established principle that the Court may not increase the sentence for a particular sentence merely because of the commission by the defendant of other offences for which he has not been charged or has gained an acquittal, but that is not the situation we have had to consider. It is not permissible to increase a sentence merely because an accused may have committed other offences for which has was not charged. On the other hand, it is perfectly permissible to take into account facts and circumstances (which fortuitously of themselves might constitute separate offences) in order to determine the gravity of an appropriate punishment for the offence for which he is charged and convicted."

6. In Huchison v. R. [1972]56 Crim. App. R. 307, the appellant pleaded guilty to an offence of incest on one occasion. However, the judge sentenced him on the basis that there had been a series of sexual intercourse between the appellant and his daughter and the appeal was allowed. Lord Justice Phillimore, delivering the judgment for the Court of Appeal (Criminal Division), said at p.309 of the report :

"Altogether this is quite unsatisfactory. Of course there are cases where the prosecution puts forward a count as a sample count and in those cases it is well understood that if that course is taken and the defence are notified, a judge is entitled to deal with the whole matter on the basis that the offence in fact was repeated more than once or that there were other similar incidents. But that is not this case : this was put forward as a single offence and Mr Hammerton says that in those circumstances the learned judge ought, if he thought he could not do justice by adopting the appellant's admission of one incident and one incident only, either have allowed the prosecution to prefer a voluntary bill charging the other, incidents as stated by the daughter or to have allowed the indictment, to be amended and then to with the whole matter at a later date. The court thinks that this contention is right."

7. In R. v. Lam Chun-yau, Mag. Crim. App. No. 622/85, the Appellant was convicted after trial of 4 charges of blackmail and 3 charges of theft. Sentence passed on theft charges was to run consecutive that which was passed in respect of blackmail charges. The total was 3 years. The appeal was allowed to the extent that all sentences should run concurrently. Mr Justice Penlington adopted what was said in the Lane case and the Huchison case.

8. In R.v. Lam Shui-leung & other, (1987) HKLR 57, the Appellant was convicted of using another person identity card and sentenced to 12 month's imprisonment. The appeal was dismissed. In delivering judgment, Mr Justice O'Connor echoed what had been said in the Lane case and in the Lam Chun-yau case at page 58E - G of the judgment.

9. Mr Dixon Tang submits that, despite the fact that it is permissible for a judge to take into account facts and circumstances of a case in order to determine an appropriate sentence, it is wrong for the learned trial magistrate to have gone beyond that limit and to have sentenced the 2 appellants as if they had been convicted of an immigration offence.

10. He further submits that it was the prosecution who decided what suitable charges should against them in order to deter them from coming into Hong Kong and that it would be wrong for a sentencer to bring the task upon himself in the course of sentencing an illegal immigrant for an offence totally different in nature. He submits that the sentence of 15 months was manifestly excessive in the light of the normal tariff for an offence of obtaining services such as that obtained by the appellants in the present case. In support of these arguments, he has referred to The Queen v. Chong Siu-min, Mag. Appeal No. 303/85 where an appellant had his sentence of 6 months reduced to 3 months for an offence of obtaining a sum of HK$500.00 by deception, he having pleaded guilty. In R. v. Leung Pui-ming, Mag. Crim. App. No. 337/88, Mr Justice Bewley allowed the appeal against sentence by reducing the original sentence of 6 months to 4 months for an offence of obtaining money in the sum of HK$605.50 by deception to which the Appellant, a taxi driver, pleaded guilty. He submits that in the light of these authorities, imprisonment of about 4 months is the normal tariff.

11. Mr Arthur for the Crown concedes that the sentences imposed were wrong in principle and that the factual situation brought the gravity of the offence at the lower end of the scale.

12. I have been informed that the appellants have been in custody since the 14th April and taking into account the period of time already spent in custody, I reduce the sentence to enable their immediate release.