HKSAR v. CHAN SO KEE

1997, NO. MA 790

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted by his own plea of one charge of aiding and abetting the remaining of illegal immigrant in Hong Kong. The facts as admitted by the appellant were that on 21^st July 1997, police officers went to the premises of the appellant and found the appellant and a woman there. The woman told the officers that she sneaked into Hong Kong by boat on 26^th June 1997 and went to the appellant's premises. The appellant provided her with shelter and food and allowed her to stay with him. The appellant under caution admitted he allowed her to stay knowing her to be an illegal immigrant and the woman was his girlfriend.

2. The magistrate in his reasons for sentence noted that the appellant intended to marry the illegal immigrant but he saw no reason to depart from the guidelines in R. v. So Man King [1989]1 HKLR 142. The magistrate sentenced the appellant to 15 months imprisonment.

3. The appellant now appeals against sentence.

4. Mr Wong for the appellant submits that the appellant came to know the woman in China while he worked there and he intended to marry her. The woman came to his door on that morning in June 1997 unexpectedly and without his prior knowledge. There was no prearrangement for her to come to Hong Kong. Mr Wong points out that there was no gain by the appellant who was put in this predicament by the sudden appearance at his doors of the girl whom he intended to marry and it would be expecting a lot that he should turn her immediately to the police. Mr Wong submits that this was accepted by the magistrate but the magistrate felt himself bound by authorities that he should impose the sentence he imposed. The authorities, Mr Wong submits, show that the normal sentence for an offence of this kind, committed in similar circumstances, is one of six months. In addition, the appellant has an aged mother in China suffering from terminal illness.

5. Mr Wong refers to R. v. Tsoi Leung Chuen MA 714 of 1996, R. v. To Yee Sang MA 589 of 1989. In both cases, the court considered the appropriate sentence was one of six months.

6. Mr Cheng, for the Government, accepts that the appropriate sentence is one of six months but he draws a distinction between Tsoi Leung Chuen and the present case where the illegal immigrant stayed with the appellant for almost a month.

7. In Tsoi Lueng Chuen, the illegal immigrant was brought by a friend to the appellant who did not offer to her any employment. Kieth J. cited R. v. Law Chuen Fook [1989]1 HKLR 164 which held that other than in exceptional circumstances, for a person convicted of an offence of aiding and abetting an illegal immigrant to remain in Hong Kong, he deserved an immediate custodial sentence. The Court of Appeal in that case also observed that :

"... those who offer opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed on the immigrants themselves."

However, because there was no suggestion that the appellant there was offering opportunities for employment to the woman he harboured, Kieth J. considered the sentence of 15 months too high and reduced it to one of six months.

8. In To Yee Sang, Bewley J. also cited Law Chuen Fook and considered the appellant who provided food and shelter to his girlfriend who was in ill health had strong mitigating grounds and the sentence of nine months was reduced to one of six months.

9. It should be noted that in Law Chuen Fook, the Court of Appeal recognised that the circumstances which give rise to an offence of this kind may vary tremendously. Cons V-P said this :

"Towards one extreme may well be, for example, the daughter who conceals her aged and sick mother so that the mother may see out the end of her days in the comfort and love of her own family. At the other perhaps we may find the greedy contractor who engages a large number of immigrant workmen at wages considerably below the going market rate."

Thus, the magistrate was not bound to give a 15 months imprisonment in every case. The appellant in the present case, did not collaborate with his girlfriend for her to come to Hong Kong and neither did he offer to her any employment. The normal sentence would have been six months imprisonment in similar circumstances.

The appellant was sentenced on 23^rd July 1997. He is due for release in less than three weeks from now. He has now served the most part of the six months sentence, taking into consideration remission for good behaviour in prison. Having regard to this and that he has an aged mother who is terminally ill, justice will be served if he can be released now. Accordingly, I allow the appeal against sentence and set aside the sentence of 15 months imprisonment, substituting therefor a term of imprisonment as would enable him to be immediately released.