THE QUEEN v. NG TUNG FONG

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL No. 1296 OF 1990

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BETWEEN

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the court.

2. Ng Tung Fong appeared before Mr. N. Stewart-pearson, Acting Principal Magistrate, in North Kowloon Magistracy for trial on a charge sheet which contained two charges; the first: remaining in Hong Kong, without the authority of the Director of Immigration, having landed unlawfully in Hong Kong: s.38(1)(b) Immigration Ordinance Cap. 115; and the second: possession of an offensive weapon. He had pleaded guilty on his first court appearance on 27th July to the first charge and not guilty to the second. His trial was fixed for 14th August 1990. On that day the prosecution informed the magistrate that, in the light of Ng's plea to the first charge, they would not proceed with the second and to effect that offered no evidence on it.

3. Having been convicted on his own plea on the Immigration Ordinance charge the magistrate, considering guidelines in The Queen v. So Man King and Others [1989] 1 HKLR 142, imposed a sentence of 15 months' imprisonment. He found no "strong humanitarian reasons" for reducing that which he considered to De the proper sentence.

4. Ng Tung Fong appealed against that sentence and on 4th February 1991 Duffy, J., under the provisions of s.118(1)(d) of the Magistrates Ordinance, Cap. 227, directed the matter be argued before the Court of Appeal. At the conclusion of the hearing we allowed the appeal and imposed upon the appellant such sentence as would effect his immediate release. We said we would hand down the reasons for our taking that course at a later stage and this we now do.

5. The reason for referring the matter to this court was because of the conflict between the judgment of Duffy, J. in The Queen v. Cheung Wing Cheong, Magistracy Appeal No. 1223 of 1989 delivered on 16th March 1990 and a number of other judgments of judges of the High Court to which we shall refer in a moment.

6. So Man King was concerned with illegal immigrants found upon construction sites and the prosecution policy then in force in respect of them. The court considered a number of previous sentencing guidelines contained in decisions both reported and unreported and accepted that the 15 month tariff sentence currently being imposed by the courts was to be continued as being the one likely to achieve a deterrent effect upon would be unlawful entrants.

7. In delivering the judgment of the court, Cons, Acting C.J. pointed out that the guideline already allowed for the almost inevitable plea of guilty but went on to suggest that voluntary surrender to the authorities should warrant a substantial discount and that strong humanitarian considerations should always be honoured. It was further said that there should be an upward adjustment in the sentence where there had been a previous unlawful entry whether that resulted in prosecution or not and where there were other circumstances which aggravated the offence. In the circumstance peculiar to that case - an unannounced change in prosecution policy - the appeals were allowed.

8. In The Queen v. Ng Kin Hung and Others [1991] 1 HKLR 81 the Court of Appeal had yet again to consider the vexed question of sentences upon illegal Immigrants. This was a decision given on 15th August 1990 and Sir Derek Cons, Acting C.J., at p. 83 set out what was the then existing prosecution policy. This was that any illegal immigrant from China discovered within the territory will be repatriated, but will not be prosecuted before repatriation unless he or she -

9. The court drew attention to the disquiet expressed in So Man King as to the "incredible disparity of treatment" giving rise to an understandable sense of grievance.

10. We have been informed that the prosecution policy has changed yet again. An illegal immigrant simpliciter, whether or not he has previously entered Hong Kong illegally is simply repatriated to China and is not prosecuted. It is clear that category (2) no lodger exists within the prosecution policy.

11. Mr. Fung who appears for the applicant in this court - appearing by permission of the Bar counsel and with the acceptance of this court without a junior because of an unavoidable adjournment of one day in this hearing accepts that the applicant here falls - just - within category (1) as, having been charged with "some other offence", the possession of the offensive weapon. But, having been found not guilty on that charge, he became in effect an illegal immigrant prosecuted for his first entry into Hong Kong.

12. The series of High court judgments to which we earlier made reference started with The Queen v. Lee Yan Bi, magistracy Appeal No. 1058 of 1988, a decision of Bewley, J. given on 14th November 1988. The illegal immigrants there did not fall specifically within the scope of the then existing prosecution policy and counsel then appearing for the Crown was unable to explain why they had been  prosecuted. The judge took the view that they could consider themselves "unfortunate to be in prison rather than back in China". He allowed their appeals against sentence.

13. The next in time is The Queen v. Yan Lap Man, Magistracy Appeal No. 1231 of 1988, a decision of Barnes, J. delivered on 29th November 1988. Again the illegal immigrant did not fall foursquare within the existing prosecution policy. Again, the appeal against sentence was allowed. In The Queen v. Chu Tai Ming, Magistracy Appeal No. 1595 of 1988, the judgment Being delivered by Wong, J. on 2nd February 1989, yet again the illegal immigrant did not fall foursquare within the then existing prosecution policy and, having considered the decisions in Lee Yan Bi and Yan Lap Man, wong, J. allowed the appeal against sentence. On the same day, in The Queen v. Chan Choi Kwok and Chan Chin, magistracy Appeal Nos. 1560 and 1561 of 1988, Wong, J. took the same course in the same circumstances.

14. In The Queen v. Wong Yi Ming, Magistracy Appeal No. 753 of 1989, de Basto, J. in a judgment delivered on 10th August 1989, allowed the appeal against sentence where the facts were not very different from those in this instant case.

15. In The Queen v. Chan Man Kit and Ng Chin Wing, Magistracy Appeal No. 1281 of 1989, Wong, J. in a judgment delivered on 20th December 1989, the Crown having conceded that the prosecution of the illegal immigrants lay outside the scope of the prosecution policy, again allowed the appeal against sentence. In The Queen v. Chan Wai Fung, MagistracyAppeal No. 1544 of 1989, a judgment delivered on 8th March 1990, the same situation pertained and the appeal against sentence was allowed.

16. The judgment, which is at variance with the general line taken in those decisions, was delivered by Duffy, J. on 16th March 1990. He dismissed the appeal against sentence. The judge had been urged by counsel then appearing for the Crown to follow those earlier decisions but this he refused to do saying at p.2:

"With great respect I cannot see how questions of prosecution policy have any bearing on sentence. A sentencing court is entitled to assume, in the absence of an application for stay on the grounds of an abuse of process, that the charges are brought in all good faith by the Attorney General, who has exercised a proper discretion in favour of prosecution. No such application was before this magistrate and the sentence he passed was in line with sentencing norms for these offences. There is, as far as I am aware, no special mitigating factor involved to suggest that I should interfere with this sentence."

 

He went on:

 

"If the Crown initially confused by the vagaries of its own policy in relation to illegal immigrants is now having second thoughts about bringing this prosecution at all, that is a matter the Crown should deal with in the time-honoured way of inviting executive intervention, and not by asking this court to use the occasion of an appeal against sentence to undo or lessen the harm done by the prosecution by securing an immediate or early release. If an injustice has been done it is the conviction that should be quashed, and this Court has no jurisdiction to quash a conviction when hearing an appeal against sentence, and certainly not where there has been no application to withdraw plea of guilty entered and recorded by the learned Magistrate. Indeed had the appeal been against conviction it would not in my view be a proper ground for allowing the appeal, if the conviction was in all other respects a proper one, that the Crown had belatedly decided it should not have brought the prosecution in the first place."

 

17. On the decisions to which our attention has been drawn it would seem that Duffy, J. walks alone.

18. We entirely accept Mr. Fung's submission that the laying down and implementation of executive policy are matters for the executive in which the judiciary, adhering to the doctrine of the separation of powers, ought not to interfere - and is in any event powerless to intervene (So Man King and Ng Kin Hung). The courts are the masters of their own house and they may rightly consider the proper exercise of executive power where that exercise operates to a defendant's detriment. The courts do not blindly apply executive policy but pay regard and attach importance to questions of public interest where they perceive public interest lies. From this stemmed the guideline sentence of 15 months' imprisonment. 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.

19. We are of the view that the course taken by those judges of the High Court who reduced the sentences imposed on illegal immigrants who were prosecuted outside that which was, or is, the normal prosecution policy was the correct one. With respect to Duffy, J. he put the matter too high in Cheung Wing Cheong when he appears to say that the proper course would have been either an application to stay the conviction as an abuse of process - which he thought unlikely to succeed - or the intervention of executive action.

20. We would respectfully adopt that which was said at p.146 in So Man King and which bears repetition:

21. While he was properly prosecuted, being within the existing prosecution guidelines having been charged with another offence, nevertheless, once he was found not guilty of that second offence, it was open to the magistrate to discount the normal guideline sentence, given the peculiarities of the case before him. Without the possession charge the appellant would not, according to policy, have been prosecuted in the first place. Once that charge went he was in the unfortunate position of someone who was being prosecuted for an offence which, in the normal course, would have led to his unprosecuted repatriation to China. That a discount would have been proper is emphasised by that which we are now told is the current prosecution policy that is: not to prosecute an illegal immigrant simply on the basis that he has committed a second offence of entering Hong Kong or remaining in Hong Kong illegally.

22. It is to be hoped that for the future a much closer scrutiny will be applied to prosecutions under the Immigration Ordinance so as to avoid the manifest unfairness to individuals resulting from the prosecutions of persons who lie outside prosecuting policy causing one individual to be dealt with in a manner different from another. This would also have the meritorious effect of saving the time of the courts.

23. As the appellant had been in custody since 27th July 1990 we considered it proper that we should make the order we did which effected his immediate release. We would add that Mr. Fung has placed a "humanitarian" aspect before us, this having arisen over the short adjournment of this appeal. There are papers now before us in relation to an illness suffered by the appellant's mother and we have seen a document relating to that illness said to be from the People's Hospital of En Ping entitled a "Sick Leave Certificate". we were not persuades that the "strong humanitarian considerations" to which So Man King made reference existed here and we have not based our decision on that.