THE QUEEN v. CHEUNG MEI YIK

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JUDGMENT

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Silke, V.-P.:

1. This is the judgment of the Court.

2. The applicant, Cheung Mei Yik, appeared for trial before His Honour Judge Wilson in the District Court on a charge sheet containing three Charges. The first was that of assisting the passage to Hong Kong of an unauthorized entrant, an offence contrary to section 37D(1) (a) of the Immigration ordinance - "the Ordinance"; the second assisting the remaining of an unauthorized entrant in Hong Kong, contrary to section 37DA(1) of thef Ordinance; both of those offences related to a woman, Sit Shui Lan; the third, relating solely to the applicant himself, was remaining in Hong Kong without the authority of the Director of immigration after having landed unlawfully, an offence contrary to section 38(1)(b) of the ordinance. The date of all the offences was 2nd June 1990.

3. The applicant pleaded guilty to the second and third charges and, as we understand it, no evidence was then offered on the first charge. He was sentenced to a period of 2 years' imprisonment on the second charge and 15 months' imprisonment on the third charge, both sentences to run concurrently, giving a totality of 2 years.

4. The facts are brief and simple. On 1st June 1990 the applicant travelled by boat to Hong Kong. His landing "fee" was $3,000. When he got here he was asked would he lead a lady, who was also on that boat, to her husband and deliver her at a restaurant for which a fee of $5,000 would be required of the husband. The applicant was excused his own fee if he carried out this task.

5. The applicant had one previous conviction in Hong Kong for remaining in Hong Kong unlawfully, that had been in 1988 and he had peen sentenced the normal sentence of 15 months imprisonment.

6. The applicant now seeks leave to appeal the sentence imposed on him on the second charge.

7. Mr. Plowman, who appears for the applicant in this Court, has drawn our attention to the provisions of section 37DA and of section 37D of the Ordinance, in particular in relation to the penalties provided for in those sections. Section 37D provides that, for conviction on indictment, a fine of $5 million and imprisonment for life, and on summary conviction, a fine of $100,000 and imprisonment for 3 years; section 37DA provides for, on conviction on indictment, a fine of $200,000 and imprisonment for 10 years, and on summary conviction, strangely, to the same fine of $100,000 and imprisonment for 3 years as in section 37D.

8. Section 38, which has relevance to the submissions, relates to the prohibition on landing and remaining without permission in Hong Kong. The maximum sentence provided in section 38(1)(a) is a fine of $5,000 and imprisonment for 3 years.

9. Our attention has been drawn to all these sections because of the reference by the sentencing judge in his Reason's for Sentence to R. v. Ho Siu Lun [1987] HKLR 1086 and R. v. Ng Fai, Criminal Appeal No. 255 of 1989 (unreported). Both of those cases related to section 37D offences. In Ho Siu Lun it was accepted that a sentence of 3 1/2 years, after a plea of guilty, for such offence was proper. We do not quite see the benefit the trial judge obtained from these two cases, even if he were misled into thinking that they were directly applicable, for his sentence does not approximate the sentences thought proper there.

10. Mr. Plowman seeks to draw an analogy between section 37DA and section 38 in relation to the penalties. This in the sense that this offence comes closer to a section 38 offence than to one against section 37D. But the Legislature has provided for a differential in maximum penalties. We would therefore prefer to consider section 37DA as standing by itself without direct reference to either section 37D or section 38.

11. There were before the trial judge certain humanitarian considerations and before us these have been amplified. They relate to the wife of the applicant. There is a medical certificate of 18th July 1990 showing her as suffering from cardiac infarction and schizophrenia. The recommendation was' that she be hospitalized for absolute bedrest. There is now before us a letter which she has written generally drawing the applicant's attention to the difficulties she faces in looking after the two children of the marriage, one aged 5 and the other aged 2, and to the fact that she is still in hospital undergoing medical treatment. There is a further medical certificate dated 4th September 1990 when we refer to these matters as "certificates", we mean that they are authenticated certificates from the Chinese authorities - which shows that, in addition, she is suffering from pancreatic cancer.

12. It has always been said that the guidelines set out in the authorities are not straight jackets and, with particular relevance to immigration offences, genuine humanitarian considerations, verified by documentary evidence, may be permitted to effect that which would be the normal sentence.

13. As to the sentence itself, leaving aside for the moment any humanitarian aspect, while it is on the high side we do not think, given the totality, that is such as would warrant our interference.

14. But this is not the end of the matter for we are prepared to take into consideration the circumstances as they were before the trial judge and as they had been amplified before us. In so doing we cannot overlook the criminal actions of the applicant - the fact is that the offence of remaining in Hong Kong was his second offence. We do think, however, that giving all the circumstances full effect, a discount is merited.

15. There is one other matter in relation to the applicant. He was arrested on the 2nd June 1990. He was then taken, it would seem, to Lai Chi Kok where he continued in the custody of the Immigration Department until 29th June when he was rendered into custody by order of a Court. The Commissioner of Correctional Services is constrained by legislation in particular the provisions of section 67A of the Criminal Procedure Ordinance Cap.221 from taking any period prior to a prisoner being rendered into Court custody into consideration when computing the sentences of imprisonment. As a result the computation in the instant case would be based on a sentence commencing on 29th June. This is something which has caused the Court some concern in other cases. The matter has been drawn to the attention of the Attorney General and we understand that matters are now in train to amend the legislation and, until the legislation has been so amended, that all prosecutors have been requested to draw to the attention of sentencing courts the anomaly which exists. Section 67A does not permit this Court to go behind the computation provisions therein set out but we think that an allowance should be made in the actual sentence to take into account the period the applicant has spent in custody from 2nd to the 29th June.

16. We would grant leave, treat the hearing as the hearing of the appeal and allow the appeal to this extent, that the sentence imposed on the second charge of 2 years be set aside and there be substituted for it a sentence of 17 months' imprisonment. The sentence on the third charge will remain concurrent and unaltered. The net effect is that the overall sentence is reduced to one of 17 months.