THE QUEEN v. CHAN SIU PING

IN THE SUPREME COURT OF HUNG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.1408 OF 1990

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BETWEEN

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JUDGMENT

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1. The appllant pleaded guilty to a charge of unlawfully remaining in Hong Kong without the authority of the Director of Immigration. He had a clear record, but on the admitted fact put before the learned magistrate, he has come to Hong Kong illegally on a previous occasion, but had been repatriated rather than prosecuted.

2. The learned magistrate took account of the fact that he had been here on a previous occasion and for that reason imposed not the usual sentence of imprisonment for 15 months, but a sentence of imprisonment for 18 months.

3. The appellant appeals against the sentence, and on the original hearing date, 12th Aril, Mr. Wong on his behalf put forward a number of grounds in support of the allegation that the sentence was excessive. It is not necessary to mention those grounds because the turn of events has made them unimportant.   

4. One submission made on 12th April was that, generally, magistrates in a case such as this impose a sentence of 15 months imprisonment, even though the guidelines of So Man King indicate that a higher sentence ought to be considered because, as emphasised in So Man King the aim is to deter illegal immigrants from coming here. The sentence to be is therefore a deterrent sentence.

5. I adjourned the nearing of the appeal for the purpose of investigating Mr. Wong's submission and to obtain a copy of a court of Appeal judgment recently handed down in R.v. Ng Tong Fong (M A 1296/90)

6. My own enquiries reveal that there is substance in the submission that Mr. Wong made about the general consensus amongst magistrates in cases such as this.

7. More importantly however, Mr. cahill, has this, moring brought to my attention the following passage in the judgment in Ng Tony Fong:-

"In The Queen v. Ng King Kung and Others (1991) 1 HKLR 81 the Court of Appeal had yet again to consider the vexed question of sentences upon illegal immigrants. This was a decision given on 15th August 1990 and Sir Derek Cons, acting C.J. at p.83 set out what was the then prosecution policy. This was that any illegal immigrant from China discovered within the territory will be repatriated, but will not be prosecuted before repatriation unless he or she.

 

 

The court drew attention to the disquiet expressed in So Man King as to the incredible disparity of treatment giving rise to an understandable sense of grievance.

 

We have been informed that the prosecution policy has changed yet again. An illegal immigrant simpliciter whether or not he has previously entered Hong Kong illegally is simply repatriated to China and is not prosecuted. It is clear that category (2) no longer exists within the prosecution policy "

8. I am informed that the new policy came into force on the 19th November 1990. This appellant was arrested in August 1990 so that the policy was not in operation at the time that he was arrested and prosecuted.

                On the other hand the position if he were to be detected today he would not be prosecuted at all. In those circumstances, whilst the sentence imposed by the learned magistrate was right in law and was in no way excessive in the circumstances which then existed I think that, as the policy has since been changed justice requires his immediate release, I allow his appeal, quash the sentence and substitute therefore such sentence as will enable his immediate release.