R. v. CHEUNG MAN KIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 278 OF 1995

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J U D G M E N T

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1. This is an appeal from Mr. Christie at Fanling when the Appellant pleaded guilty to aiding and abetting an illegal immigrant to remain in Hong Kong and transferring a forged identity card. The Magistrate sentenced him to 12 months on each charge consecutive, a total of 2 years.

2. The facts were somewhat unusual and the Appellant although he has some previous convictions has clearly set out rehabilitate himself. He has been in employment for a number of years and supports his wife and family. The circumstances of the aiding and abetting was the provision of a room because he was asked by a friend to give his girl friend a room. What he did was obviously wrong but it is not to be equated, in my judgment, with the provision of employment which is an incentive to people to come to Hong Kong and indeed to encourage illegal immigrants and the Court of Appeal has said that the sentence for employers should be equivalent to and some instances higher than what an illegal immigrant himself obtains.

3. The circumstances here were, in judgment, quite different and the Magistrate should have made, first of all, a starting point of what he considered to be the criminality of this offence. In my judgment, the starting point for this offence was 12 months imprisonment. However, he pleaded guilty and he is entitled to a substantial deduction for that and the sentence should be reduced to 8 months imprisonment. As far as the transfer of an identity card this of course is a serious offence, nevertheless, the circumstances were that it was a transfer he arranged for it and he gave it to this young woman. In my judgment, the starting point of 18 months was too high and it should have been in the region of 15 months. He is entitled to deduction from that making 10 months. In normal circumstances, a total of 18 months might even appear to be on the high side. He has given substantial co-operation to the police and he has offered to assist them by being a witness. The Court should recognize this and give proper allowance. I think I should give an additional allowance of 6 months. The sentence is therefore reduced to a total of 12 months imprisonment. The facts of this case were special and if they were not, I would not have interfered with the Magistrate's sentence.