ATTORNEY GENERAL v. CHAN WAI MING AND ANOTHER

---------------------------

------------------------------------------

JUDGMENT OF THE COURT

-------------------------------------------

Macdougall, J.A.:

1. The Attorney General, having -obtained; leave to do so, applied pursuant to see 81A of the Criminal Procedure Ordinance, Cap. 221 for a review of the suspended sentences imposed on the two respondents on l May this year by Mr. P.C. White at Tsuen Wan Magistracy.

2. They had been charged with the offence of remaining in Hong Kong without the authority of the Director of Immigration contrary to section 38 (1) (b) of the Immigration Ordinance Cap. 115. To this offence they both pleaded guilty. The 1st respondent, Chan Wai Ming, was also so charged with the offence of assaulting a police officer in the due execution of his duty, but was convicted after trial of resisting a police officer in the due execution of his duty. The 2nd respondent, Ho Tak Muk, was charged with theft. He was convicted after a contested trial. The theft was of a wallet that contained an identity card.

3. The magistrate found that the resisting the police officer offence had arisen out of a short struggle when the 1st respondent was attempting to escape arrest. He described it as "a fairly typical struggle not involving any specific acts of violence". He observed that the offence committed by the 2nd respondent was one of theft by finding and that as the prosecution had not charged him with having in his possession without lawful authority or reasonable excuse an identity card relating to another person, "there was no basis for dealing with him as if the 'theft' of that identity card was a matter of special significance".

4. The magistrate came to the conclusion that, when viewed in isolation, neither of these two offences called for an immediate custodial sentence, and that therefore it was inappropriate to impose such a sentence on either respondent for his offence against the Immigration Ordinance. He discharged them both on the resisting arrest and theft charges respectively.

5. It was the magistrate's opinion that the decision of this court in R. v. Ng Tung-fong M.A. 1296 of 1990 "provided magistrates with a basis for departure from the guidelines where failure to do so would lead to injustice". In arriving at that conclusion he placed reliance on the following passing from the judgment of the court delivered by Silke V.-P.:

"         Magistrates imposing the normal sentences are applying judicial policy and not implementing executive policy. The courts do not dictate to the executive, but if the courts, properly advised, consider that executive policy had been applied unfairly to an individual then it is proper for the courts to mitigate that unfairness by reducing the length of any sentence it might think fit to impose - but always bearing in mind that an offence contrary to law has been committed. To effect this sentencing, courts have a discretion to depart from guidelines."

6. However, having properly accepted that executive policy had not been unfairly applied to either respondent, the magistrate directed himself "that it was [his] duty to impose a fair sentence and one which could properly be fitted to existing sentencing guidelines."

7. It is plain to us that, in his anxiety to about the result he desired the magistrate derived from that passage in Ng Tung-feng a principle that it did not express. The court there confined itself to the situation where executive policy has been applied unfairly to an individual. There is nothing in the court's judgment that encourages, let alone authorises, a magistrate to depart from the established sentencing guideline simply because executive policy that has been fairly applied does not produce a result that accords with his concept of fairness.

8. In R. v. So Man-hing this court recognised that voluntary surrender to the authorities should warrant a substantial discount, and that strong humanitarian considerations should always be honoured, even to the extent sometimes of suspending the prison sentence that is otherwise thought appropriate. However, as was made clear in AG v. Chan Shu-mui Application for Review No. 13 of 1989, the fact that an illegal immigrant came to Hong Kong in order to earn money to assist his family or to improve his own lot in life does not constitute a strong humanitarian consideration that would justify a departure from the guideline.

9. Mr. Westbrook, who appeared for the respondents in this court but not in the court below, very properly conceded that there were no such considerations in the present case. He submitted, however, that where the accompanying offence that triggers the prosecution of an illegal immigrant for an offence against section 38 of the Immigration ordinance is not of a serious nature, the magistrate should nave the discretion to depart from the basic sentencing guideline. This, of course, simply expressed in slightly different terms what the magistrate perceived to be the position.

10. In our view, however, the basic sentencing guideline, which Was confirmed by this court in R v. So Man-hing, is perfectly clear and should continue to be followed. For the reasons we have given we granted both applications, set aside the sentences imposed by the magistrate and substituted for them immediate sentences of 15 months' imprisonment on each respondent.