R. v. LAU CHUN KWAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 266 OF 1994

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J U D G M E N T

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1. On 25th January 1994 at Eastern Magistrates' Court, the Appellant pleaded guilty to two charges. The first charge was possession of an offensive weapon, namely a knife, without a satisfactory explanation, and the second was remaining in Hong Kong without the lawful authority of the Director of Immigration. In view of the Appellant's mitigation on the first charge - that he had the knife with him for cutting fruit - the magistrate refused to accept his plea of guilty on that charge. In due course, however, the magistrate convicted the Appellant on that charge, and sentenced him to 3 months' imprisonment on that charge and 18 months' imprisonment on the second charge consecutive, making 21 months' imprisonment in all. He now appeals against those sentences.

2. The duty solicitor told the magistrate that the Appellant, who was 35 and married with a child aged 5, had come to Hong Kong from China to find work. However, this was not the first time that the Appellant had been caught in Hong Kong. He had on three recent occasions in 1990, 1991 and 1992 been sentenced to 15 months' imprisonment for remaining in Hong Kong without the lawful authority of the Director of Immigration - although, on the second of those occasions, the term he was sentenced to was reduced on appeal to one which permitted his immediate release and his repatriation to China.

3. The fact that he had come to Hong Kong unlawfully before justified on this occasion a sentence in excess of 15 months' imprisonment for which the guidelines in So Man King [1989] 1 H.K.L.R. 142 provide : see the judgment of Cons ACJ at p. 145 E. In determining that the sentence should be 18 months' imprisonment, the magistrate said this in his Reasons for Sentence :

"In the appellant's case having regard to the number of times he had previously entered Hong Kong a sentence of 2 years would have been appropriate...... But I considered that as no previous sentencing court had exceeded 15 months for the same and similar offences and the appellant may have been lulled in to a sense of false security by that consistency of approach it would not be right to impose a sentence longer than 18 months. On the other hand any lesser sentence would be wrong."

I regard the magistrate's approach as impeccable.

4. As for the charge of possessing an offensive weapon, I do not think that the magistrate can be faulted for imposing a sentence of 3 months' imprisonment. The only question was whether that sentence should be ordered to be served consecutively to the sentence imposed on the other charge. In my view, the magistrate was correct to order the sentence to be served consecutively. The two offences were of an entirely different nature, and it was not as if his possession of the knife was the reason why he was being prosecuted for unlawfully remaining in Hong Kong. He would have been prosecuted for that even without his possession of the knife because of his previous convictions. I agree with this observation of the magistrate :

"In addition I considered it would be quite wrong to give this appellant, who committed offences other than immigration offences on all but one of the occasions he came to Hong Kong, any further idea that the courts here would, in effect, not punish him for offences other than illegally remaining by imposing concurrent sentences."

5. When the Appellant first appeared before me on 19th July, he told me that things had changed since his sentence. He had received a letter from his wife telling him that his father was now gravely ill. He told me that that was confirmed by a medical certificate from a hospital in Guangzhou to the effect that his father was now in hospital suffering from lung cancer. The appellant wished to returned to Guangzhou to see his father before he dies, and to help his wife cope with the additional burden of visiting his father, his mother having died two years ago. The Appellant did not have either the letter from his wife or the medical certificate with him, so I adjourned the hearing of the appeal until 22nd July for him to produce them.

6. When he appeared before me on 22nd July, he did produce them. They looked genuine enough, though I noted that the medical certificate referred to the cancer from which his father was suffering from as liver cancer, and not lung cancer as he had told me on 19th July. However, I adjourned the appeal yet again because I wanted to see the file relating to his appeal in 1991. I wanted to know what he had then said which had persuaded the court to reduce his sentence to one which permitted his immediate release. I have now seen that file. The notes made by Bewley J., who heard that appeal, showed that the Appellant was saying that his father was dead and his mother had cancer. He produced a medical certificate from a hospital in Guangzhou to that effect.

7. I do not believe the story that the Appellant tells me today. If he was telling Bewley J. the truth about his father being dead, the whole basis for his plea for mercy to me today is a lie. If he was lying to Bewley J. about his father being dead in order to make his plea to be released to see his mother before she died more compelling, he cannot blame me now for being sceptical about the illness which he claims his father is now suffering from. He has told me today that he was referring to his step-father, and not his real father, but I do not believe him about that either.

8. A judge hearing appeals of this kind is entitled to be sceptical. In Lam Lai Chu (MA 912/92), I said :

"... if my experience of appeals of this kind is anything to go by, there is hardly ever an illegal immigrant in Hong Kong who does not have an ill or dying spouse or parent in China."

That scepticism becomes particularly strong in a case in which the Appellant lies about his father either to Bewley J. or to me, and fails to remember correctly the type of cancer which the medical certificate says his father is suffering from. In these circumstances, I am not prepared to swallow the coincidence which the Appellant claims has occurred, namely, that he has twice had the misfortune to discover, not merely while he was in Hong Kong illegally, but after he had been sentenced, that his parents were suffering from cancer.

9. The consequence of my not believing the Appellant is that the medical certificate he has produced is not genuine. It is either a forgery, or (if it indeed came from the hospital which it purported to come from) it was obtained by bribery or corruption. I dealt with the verification of medical certificates in circumstances such as these in Kong Fai (MA 248/93). I noted that the problem would be solved if it was possible for the Crown, with the benefit of a short adjournment, to check when the certificates were given and whether their contents were true. I had been told, however, that the Crown took the view that the verification of certificates of this kind was not a practicable possibility. Although it was, of course, not for me to advise the Crown as to the steps which ought to be taken, I added in Kong Fai that

"the checking of a prisoner's mail to see whether he asks for a medical certificate to support a plea on humanitarian grounds can be considered, and a list of those clinics which have issued such medical certificates and of the dates of those certificates would provide a data bank against which future certificates could be checked."

I repeat those remarks in this judgment so that further consideration can be given to them.

10. Accordingly, this appeal must be dismissed. Since, though, this appeal was not merely unmeritorious, but was initiated by the Appellant on the basis of what have I found to be a lie, this is, in my view, an appropriate case for me to exercise my powers under section 122 (3) of the Magistrates Ordinance (Cap. 227) to direct that one month of the time during which the Appellant has been in custody pending the determination of this appeal should not be reckoned as part of the time of the sentences imposed by the magistrate.