ATTORNEY GENERAL v. NG KWOK PING AND ANOTHER

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J U D G M E N T

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Power, J.A.:

1. We have for consideration three applications for review of sentence brought by the Attorney General. The applications involve five unlawful entrants each of whom was sentenced to imprisonment for one day by Mr. Paterson-Todd in the Fanling Magistracy. In the first, Application for Review No.16, we are concerned with Tai Man-bing; in the second, Application for Review No.17, we are concerned with NG Kwok-ping and CHEUNG Wah-chiu; and in the third, Application for Review No.20, we are concerned with CHEUNG Sai-keung and CHEUNG Hoi-wing.

2. We will deal firstly with Application Nos.17 and 20. The four respondents were unlawful entrants found working in Hong Kong where they had no right to be and no right to work. The Attorney General v. Lam Ping-chun Application for Review No.10 of 1988, to which reference has been made by Mr. Lugar-Mawson who appears for the Attorney Geeneral, makes it plain that such illegal entrants should be dealt with by the imposition of a sentence of imprisonment and indicates that the appropriate period of imprisonment is one of fifteen months. Each of the unlawful entrants was 18 years of age. It was suggested by Mr. Cheng Huan, Q.C., who appeared with Mr. Louis Tong for the respondents, that CHEUNG Hoi-wing should have been dealt with upon the basis that his age was 16 years and 5 months. This is the age he claimed when interviewed by the representatives of the Commissioner of Correctional Services for the purpose of making the Detention/Training Centre Report which was called-for by the Magistrate. The Magistrate however acceptod, as he was entitled to by virtue of s.109A of the Criminal Procedure Ordinance, that Cheung Hoi Wing was 18 years of age. He relied, no doubt, upon the statement contained in the report and we are satisfied that we also must deal with both upon the basis that each was 18 years of age.

3. The extenuating circumstances that Mr. Cheng Huan urges upon us are firstly the age of the respondents; secondly that each has been subjected first to a review application before the Magistrate and then to this application before the Court of Appeal and, finally that each has spent 14 days in a detention contre while the report was being prepared for the Magistrate. We are satisfied that the time spent in the detention centre and the fact that there was eview in front of the Magistrate are not matters to which any weight can be given when determining whether or not we should review the sentences.

4. The Attorney General submits that the sentence of one day was wholly inappropriate and that the Magistrate should have been guided by considerations to which reference was made in LAM Ping-chun's case. There Cons, V.-P. when dealing with a suspended sentence imposed for a similar offence, said:

"The Magistrate was at pains to point out in her Reasons for Sentence that it is not mandatory to pass a sentence of 15 months for this offence. With that we entirely agree. Guidelines are meant only to guide. They are not intended to place lower courts in a straight jacket. There may well be cases where circmstances do warrant a lesser sentence, and humanitarian considerations must always be respected. On occasions they may even be so strong that suspension of the sentence would be apropriate.

    In the particular instance the Magistrate apparently accepted that humanitarian considerations to that degree were to be found in the fact that the Respondent was only 18 years of age, that he was a stranger alone in Hong Kong and that he had not even a roof to cover his head.

    With every respect to the Magistrate, those factors do not even start to get a suspended sentence off the ground. Illegal immigrants are commonly in the younger age groups, although they must necessarily be sufficientiy mature to have made the decision to embark on the hazardous course that they did; and if the Respondent has no friends or relatives here, and no place to lay his head, those facts were well known to him before he set out."

5. We adopt what was said by Cons, V.-P., in that passage. We are satisfied that the fact that these young men were 18 years of age cannot be of any real assistance to them when pleading for leniency. The courts must take a severe view of offences of this kind even when committed by 18 year olds as it is this group which is particularly inclined unlawfully to enter Hong Kong. We are satisfied that the proper sentence in each case would have been one of 15 months imprisonment. We take into account, however, that the sentences are being varied upon an Application for Review by the Attorney General and consider, therefore, the appropriate sentence to be 12 months imprisonment.

6. It might have been submitted that, as mature co-defendants of these respondents received sentences of 12 months, their sentence at first instance should not have been more than that and that upon review the sentence should be scaled down from 12 months. We do not consider that it would be proper so to do as we are satisfied that the co-defendants were fortunate in that they were dealt with leniently. The sentences will be accordingly 12 months in each case.

7. We turn now to the Application for Review No.16. TAI Man-bing was 16 years of age at the time of the commission of the offence. He was found working with others in the Hoi Shan Restaurant which is very proximate to Chung Ying Street, Sha Tau Kok, down which the border between Hong Kong and China runs. It has only today come to light that he had a Special Permit for travel in the border prohibited area issued by the Chinese Authorities. This permit his no validity in law in Hong Kong. It appears, however, that holders of such a permit will be prosecuted by neither the Chinese nor by the Hong Kong authorities when they cross the border running down the middle of Chung Ying Street. It is the attitude of the Hong Kong Authorities that when such persons stay within the immediate vicinity of Chung Ying Street they will not be subjected to prosecutions. The permit however gives no legal right to cross the border and persons who stray beyond that immediate area are liable to arrest and prosecution. The restaurant, it appears, backs on to Chung Ying Street and Mr. Lugar-Mawson has, very fairly, conceded that there is some doubt as to whether a permit holder who entered the restaurant as a customer would be prosecuted.

8. The respondent was an unlawful entrant but, had he not been working, he might well not have been prosecuted. Clearly when he commenced to work he put himself out of the category of persons to whom the Hong Kong Authorities are prepared to turn a blind eye. He was, there can be no doubt, properly prosecuted and properly before the Magistrate.

9. The Magistrate was right to take into account his age and the special circumstances of his employment and its place. He went home each night from his work. He is, as Mr. Cheng Huan points out, not in that class of illegal entrants who take up residence and becomes a burden on the infrastructure of Hong Kong.

10. We are satisfied that the offence he committed is one and one would normally call for a period of immediate imprisonment but consider that, in the circumstances of his case, bearing in mind that he has been in custody since 22nd September, it would not be appropriate to review his sentence. The application is therefore refused.