THE QUEEN v. CHAN HOI POR AND ANOTHER

IN THE COURT OF APPEAL

1987, No. 300
(Criminal)

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J U D G M E N T

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Kempster, J.A.:

1. On 25th of May of this year at Tsuen Wan District Court CHAN Hoi-por and CHAN Yick-man were convicted on their own pleas of assisting the passage to Hong Kong of unauthorised entrants. On 15th January they had led two girls aged respectively 10 and 9 years across the border fence at Man Kam To into Hong Kong where their father was lawfully resident.

2. On 8th June, having obtained reports about them, Deputy Judge Jones sentenced both to 2 years' imprisonment. His reasons were laconic:

"Take into account age and clear record. No evidence of financial gain to them, but defendants aware of Hong Kong policy on illegal immigrants. Court must view it severely."

3. It must have been apparent to him that their dates of birth were uncertain but relying on the documentation available he would seemed to have treated both as being 18 years of age. He did not expressly find, as required by s.109A of the Criminal Procedure Ordinance, that no method of dealing with them other than imprisonment was appropriate and possibly relied upon the assertion of the Commissioner of Correctional Services that CHAN Hoi-por and CHAN Yick-man, being illegal immigrants liable for repatriation, were not suitable for confinement in a detention or training centre.

4. CHAN Hoi-por and CHAN Yick-man sought leave to appeal against the sentences of imprisonment passed upon them. When their applications came before a division of this court on 8th September the question of their real ages gave rise to concern and the hearing was adjourned for the investigation of records in the possession of the Director of Immigration. Copies of those records are now before us and we have heard the applicants' own opinions as to their respective ages. In the light of such "evidence" and having regard to the general approach required of the courts by section 106A of the Criminal Procedure Ordinance we conclude that both applicants were aged 15 on conviction. In the premises they were "young persons" within the meaning of section 2 of the Juvenile Offenders Ordinance. In relation to sentence section 15 applies. Committal to a place of detention would have been the appropriate sentences rather than 2 years' imprisonment. The period of detention could not have run for more than six months.

5. The applicants have been in custody, it would seem, since their arrest on 15th January last. Accordingly we think it appropriate to allow their applications, to treat this as the hearing of appeals and to order their discharge so soon as arrangements can be made for their repatriation to China.