THE QUEEN v. WONG WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1130 OF 1988

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J U D G M E N T

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1. The appellant pleaded guilty, before Mr O'Keeffe at Western Magistrates Court, to remaining in Hong Kong without the authority of the Director of immigration after having landed unlawfully in Hong Kong contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115 and was sentenced to 12 months imprisonment.

2. This was the appellant's second visit to Hong Kong. He had been arrested in January, 1984 and later removed to China.

3. On this occasion he arrived on 15th September and the next day discovered from his relatives here that he would not be able to get a job without an identity card. He promptly returned to Lo Wu and surrendered to the police.

4. In R. v. So Man-king and Others M. A. 408 of 1988 the Court of Appeal held that 15 months should be the normal sentence for this offence but that voluntary surrender to the authorities warranted a substantial discount. That case also decided that previous entry was an aggravating factor.

5. In his Reasons for Sentence, the magistrate says he took into account the factors urged by the appellant, but he gives no reasons - as he should have done - for imposing this particular sentence.

6. Assuming that he started with the 15 months sentence approved in So Man-king, he should have made both an upward and a downward revision to take, into account the aggravating and mitigating factors present in this case. If he did so, it is not clear how he made his calculations.

7. In my judgment the magistrate has failed to give sufficient discount for the prompt surrender to the police. This should have resulted in a sentence of six months. To this must be added an additional term for the fact that it is not the appellant's first visit.

8. For these reasons I allow the appeal and reduce the sentence to nine months. This is, in line with the decision of Barnes J. in R. v. Wong Hon-keung M. A. 719 of 1988, in which the facts are similar.