HKSAR v. FOK WAN LUNG

HCMA 718/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 718 OF 2009

(ON APPEAL FROM TMCC 2209/2009)

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J U D G M E N T

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1.  The Appellant appeared before a Magistrate sitting in the Tuen Mun Magistracy on 14 August 2009 and pleaded guilty to two charges, those being firstly, remaining in Hong Kong without the authority of the Director of Immigration after having landed here unlawfully contrary to Section 38(1)(b) of the Immigration Ordinance, Chapter 115, Laws of Hong Kong and secondly, possession of an offensive weapon in a public place contrary to Section 33(1) of the Public Order Ordinance, Chapter 245, Laws of Hong Kong.  The offensive weapons involved two fruit knives.

2.  On the first charge, the learned Magistrate sentenced theAppellant to 15 months’ imprisonment, and on the second 6 months which was ordered to run consecutively to the sentence of 15 months, coming to a total of 21 months’ imprisonment.

3.  The Appellant, by a notice of appeal filed on 18 August 2009, appeals against these sentences on the grounds that they are too severe.  In court before me today, the Appellant has told me nothing that in any way adds to this general ground.

4.  The facts giving rise to the two charges and which were admitted by the Appellant were unremarkable.  He was spotted by a police patrol party on 16 June 2009 acting suspiciously at Sai Tai Street in Yuen Long.  He was stopped and searched.  His illegal status was revealed and inside the Appellant’s handbag, the two knives were found.  Under caution, the Appellant stated that he had been beaten by somebody in Shenzhen and therefore he purchased the knives for self-defence.

5.  The Appellant, the learned Magistrate was told in mitigation has a clear record in Hong Kong, is 23 years of age, and is the sole breadwinner of his family.

6.  The learned Magistrate adopted the normal approach in following the guidelines of R v So Man King (1989) 1 HKLR 142 and sentenced the Appellant to a term of 15 months’ imprisonment on the first charge.  There were no humanitarian or other circumstances which would have justified him in departing from these guidelines.

7.  With regard to the second charge of possession of an offensive weapon, the learned Magistrate in his reasons for sentence indicated that he took a serious view of it and adopted a starting point of 9 months’ imprisonment which is entirely justified.  Having reduced this to 6 months to take account of the Appellant’s plea of guilty, he rightly ordered the sentence to run consecutively to the term of 15 months.

8.  There is simply no merit in this appeal.  I dismiss the appeal against sentence and confirm the sentences imposed.