R. v. TSOI LEUNG CHUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 714 OF 1996

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J U D G M E N T

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1. On 29th May 1996 at North Kowloon Magistrates' Court, the Appellant pleaded guilty to two charges. The first was aiding and abetting a young woman who had landed in Hong Kong unlawfully to remain in Hong Kong without the authority of the Director of Immigration. The second was possession of a small quantity of ice. He was sentenced to 15 months' imprisonment on the first charge, and to 6 months' imprisonment on the second. They were to be served concurrently with each other, making 15 months' imprisonment in all. He now appeals against his sentence on the first charge.

2. On his arrest, the Appellant claimed that the woman had been brought to his flat that morning by someone he did not know and that he had been asked to look after her. He knew that she was an illegal immigrant. She told the police that she had come to Hong Kong by boat the previous evening and had been taken to the Appellant's flat by a friend. I do not know whether the magistrate accepted any of that as true, because he did not state in his Reasons for Sentence on what facts he sentenced the Appellant on the first charge. Indeed, the magistrate gave no reason at all in his Reasons for Sentence for fixing the length of the sentence on the first charge at 15 months' imprisonment.

3. I confess to being extremely sceptical about the truth of what the Appellant claimed. It would have been particularly bad luck for him to be arrested on the evening of the very day on which he had taken the woman in. However, since the magistrate did not express any such scepticism (even though he might have thought it), it would, I think, be unfair to the Appellant if I proceeded on that basis. I therefore approach this appeal on the footing that the Appellant had not been harbouring the woman for some time but had only just taken her in. I also proceed on the basis of his mitigation to the magistrate, which was that he had acted out of compassion for the woman and had not received any money for his trouble.

4. In Law Chuen Fook [1989] 1 HKLR 164, the Court of Appeal held that other than in exceptional circumstances the offence for which the Appellant had to be sentenced deserved an immediate custodial sentence. What Cons V.-P. added at p.165I-166C was this:

"[Those who commit this offence] encourage yet others to seek refuge here, thereby undermining the policy behind the sentences imposed for the principal offenders, that is, to deter would-be illegal immigrants from putting their intentions into practice. This is particularly so where opportunities for employment are offered, for it is the hope of substantially higher wages which at present is one of the principal attractions. If a would-be illegal immigrant knew that his hope of employment was unlikely to be fulfilled, he would be much less inclined to take the gamble of smuggling himself here ... [W]e feel it inappropriate to suggest any particular period of imprisonment as being in general suitable for those convicted of aiding and abetting, save to say that those who offer opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed on the immigrants themselves."

The sentence which the magistrate imposed on the first charge was equivalent to the tariff sentence imposed on illegal immigrants from China, even though there was no suggestion that he was offering opportunities for employment to the woman he harboured. The sentence on the first charge was therefore far too high. I propose to reduce it to 6 months' imprisonment.

5. Since there is no challenge to the sentence of 6 months' imprisonment on the second charge, the only remaining question is whether the two sentences should be served concurrently with or consecutively to each other. I appreciate that the magistrate thought that they should be served concurrently with each other, but that may be because he thought that sentences totalling 15 months' imprisonment in all were called for. However, since the offences were so different in nature, consecutive sentence were appropriate. In my view, the fairest course to take is to direct that 3 months of each sentence be served concurrently with each other, and the remaining 3 months of each sentence be served consecutively to each other. What that means is that the term of imprisonment which the Appellant has to serve is one of 9 months' imprisonment in all. To that extent, this appeal is allowed.