Attorney General v. LI HOP MING

IN THE COURT OF APPEAL

Application for Review

No. 12 of 1992

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J U D G M E N T

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Sir Derek Cons, V.P., gave the reasons of the Court:

1. On the 12th of this month we dismissed an application brought by the Attorney General under s. 81A of the Criminal Procedure Ordinance, Cap. 221, with the leave of the Chief Justice, to review sentences passed by Mr. P.C. White, a magistrate, upon Li Hop Ming ("the defendant") namely, imprisonment for six months upon an offence of using a forged identity card contrary to s. 7A(1) of the Registration of Persons Ordinance, Cap. 177, and imprisonment for 18 months, consecutive to the above term but suspended for two years, upon an offence of remaining in Hong Kong without the authority of the Director of Immigration after having unlawfully landed, contrary to s. 38(1)(b) of the Immigration Ordinance, Cap. 15. We said we would hand down the reasons for our decision later, which we now do.

2. The defendant was arrested on the 23rd of September last year when working in a restaurant in Happy Valley, employment he had enjoyed since April by the production of a forged identity card. The circumstances which eventually led to that situation were accepted by the magistrate upon the word of the defendant alone. Criticism that he should not have done so without production by the defendant of some independent confirmation was withdrawn at the hearing before this Court.

3. The defendant first came, unlawfully, to Hong Kong in 1980, just a little too late to enjoy the benefit of the "touch base" policy. Nevertheless he remained clandestinely, married and fathered two children, a daughter; born in 1981 and a son in 1987. Two years later he was arrested and on 18th May 1989 was sentenced in North Kowloon Magistracy to nine months' concurrent imprisonment on each of two charges of using an identity card belonging to another. We were shown no details of those proceedings.

4. Presumably the defendant was returned to China on completion of his sentence, but shortly, if not immediately, thereafter he returned, again unlawfully, having purchased in Shenzhen a forged identity card. The magistrate was satisfied that:

"the defendant's return to Hong Kong was not so much concerned with his lack of economic opportunity in China as it was with his desire to be with his wife and children so that he might provide them with the essential support he considered it was his duty to provide."

5. In that respect he must unfortunately have failed, for, as he put it himself to the magistrate:

"at the beginning of last year my wife ran away from me because I have no money".

6. At the time of his trial the two children were being looked after by friends in Shatin. We are told that that remains the position and that both of them are receiving regular education in local schools.

7. Two aspects of sentencing practice are pertinent to these proceedings. The first relates to the guidelines to be found in The Queen v. So Man King & Ors [1989] 1 HKLR 142, which suggest that the normal sentence for offences of this kind should be 15 months' imprisonment, with longer periods for repeated offenders or where the circumstances are aggravated by, e.g. the use of a forged identity card. The second is the principle that in general suspended sentences should not be "mixed" with terms of immediate imprisonment: The Attorney General v. Tse On [1986] HKLR 215.

8. The magistrate was well aware of both. Nevertheless he felt that in the particularity of the circumstances there were strong humanitarian grounds which justified his departure from the two norms. It was suggested on behalf of the Attorney General that the fact of a "split" family, the root cause of the magistrate's decision, could never be accepted as strong humanitarian grounds, for to do so would inevitably undermine the very policy of the legislation. As to that we have to say that decisions on humanitarian grounds will, from their very nature, usually, if not on all occasions, run contrary to the general purpose of the particular law, and the possibility of their being made in cases of this kind was expressly approved by this Court in So Man King.

9. It is conceded that suspension of the second term of imprisonment was lawful, thereby excluding the third possibility encompassed by s. 81A. This Court can interfere therefore only if the sentences were wrong in principle or manifestly inadequate.

10. We cannot see how it can be successfully maintained that the "mixing" of the sentences was necessarily wrong in principle when the principle itself allows for exception. McMullin, V.P., at p. 217, of Tse On said expressly" in cases such as the present", which the case we are concerned with certainly is not. The immediate term of imprisonment was considerably less than members of this Court might themselves have imposed, but we are not persuaded that it was manifestly inadequate. The circumstances of the defendant at the time of trial were exceptional. The magistrate gave them careful consideration. The course he then adopted, whilst unusual and unlikely to be appropriate on other occasions, was within the proper bounds of his discretion. In that event there is no ground for this Court to interfere.

11. It was for these reasons that we dismissed the application.