THE QUEEN v. TSUI WAI HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 988 OF 1990

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BETWEEN

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JUDGMENT

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1. This is a "run of the mill" illegal immigrant case in which the Appellant was sentenced to the usual sentence of imprisonment for 15 months. He was arrested on the 9th June 1990, but was not charged until the 20th June 1990. He was brought to court the following day where he pleaded guilty and the sentence, I referred to, was imposed.

2. On his appeal against sentence, the Appellant makes no complaint about the period of imprisonment itself. What he asks me to do is to take account of the fact that he was in custody before sentence from the 9th June until the 21st June.

3. Under the Criminal procedure Ordinance, it appears that that period is not taken into account by the Department of Correctional Services in computing the time during which he is to be kept in that Department's custody.

4. In an earlier appeal, Mr. Bailey referred me to a Court of Appeal decision, The Queen v. Cheun,(C.A. 442 of 1990), in which the Court suggested that prosecutors should bring to the attention of sentencing magistrates this period spent in custody before illegal immigrants are brought to court. The decision of the Court of appeal was not handed down until January of this year so the practice which the court recommended had not been adopted when this Appellant was sentenced. Had it been in operation, the learned magistrate, no doubt, would have paid regard to it and reduced the 15 months by the period which he, the Appellant, had spent in custody prior to sentence.

5. It would appear that I do not have the power to order that the sentence date from the date of his arrest. The only way in which I can adjust the sentence is by imposing a new sentence which will reflect an allowance for the period he then did spend in custody.

6. In order to achieve that aim, I therefore allow the appeal, quash the sentence and substitute, therefor, a sentence of imprisonment for 14 1/2 months.