ATTORNEY GENERAL v. CHAN SHU MUI AND OTHERS

Headnote

Sentence on construction site illegal immigrants: strong humanitarian considerations: what are not.

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Chan Shu Mui, Chan Kwong Chin, Cheung Yung Sing and Yuen Chan Koon appeared before Mr. Paterson-Todd in Fanling Magistracy on 3rd October 1989 charged with remaining in Hong Kong after having landed unlawfully in Hong Kong, an offence under section 38(1) (b) of the Immigration Ordinance Cap.115. They all pleaded guilty and were thus convicted and they were all sentenced to a period of 6 months' imprisonment.

2. The Attorney General, by leave, now asks this Court to Review, under the provisions of section 81A of the Criminal Procedure Ordinance, Cap.221, those sentences. The application is based on the grounds that they were both wrong in principle and manifestly inadequate.

3. The basic facts were simple and all too familiar. On 21st September 1989 the police conducted what is described as an "anti-evader operation". This took place at the construction site of the Fanling Centre. All the respondents were upon the site. All were recent first time illegal immigrants from China. Not surprisingly, they had no criminal record in Hong Kong.

4. The magistrate having been asked to review those sentences expressed himself of the view they all had clear records; that they all pleaded guilty; that they were all relatively young men, their ages being 30, 23, 28 and 23 respectively. He also took the view that their actions involved no dishonesty or moral turpitude and he he was of the opinion that he could not in the circumstances normally pass sentences of the order of 15 months' imprisonment for this type of offence in the first instance.

5. In his more elaborate Reasons for Sentence he made reference to the same factors accepting that these men had seemed to come to Hong Kong with a will to earn a living. He concluded:

"The court considered that six months imprisonment in the first instance was commensurate with the offence charged and the facts of the case."

6. The matter of the appropriate sentence for illegal immigrants remaining in Hong Kong unlawfully was discussed in A.G. v. So Man King and others [1989] 1 HKLR 142. The Court had been fully informed of the incidence of illegal immigration and of the general policy in relation to the prosecution of illegal immigrants found upon construction sites. This was first, where six or more persons were found then prosecutions were instituted but, shortly before the hearing of So Man King in August 1988, the number had been changed to three persons. Statistics were produced to indicate that the previous sentences in the range of about 9 months had not been an effective deterrent to illegal immigration but that sentences more recently passed of 15 months had been.

7. Mr. Lugar-Mawson today has informed us that the general statistics, although he is not in a position to produce figures, indicate that 15 months is continuing to be a deterrent to illegal immigration.

8. In giving the judgment of the Court Cons, Acting Chief Justice, said:

"Thus if the authorities continued their present policy, an illegal immigrant who accepts engagement on a construction site where there are at least two other immigrants will, if apprehended there, find themselves in a vastly different situation from one who for example chances to find more individual employment or is perhaps arrested on his day off."

9. The Court was considering the recent change in policy, unannounced, and which had been put into effect with considerable rapidity as a result of which the Court thought that people had been misled. The judgment continued:

"Such almost incredible disparity of treatment will no doubt give rise to an understandable sense of grievance in a man who is sentenced to 15 months' imprisonment. But it is one that is not in the power of the Court to remedy."

10. The Court confirmed the 15 month guideline, but stressed that it was a guideline, as being the proper sentence after the almost inevitable plea of guilty.

11. This decision has been followed in subsequent cases in particular in A.G. v.Lam Ping Chun [1989] 1 HKLR p.161 and A.G. v. Tai Man Bing and Others [1989] 1 HKLR 553. It is accepted that it emerges from those cases that strong humanitarian considerations may lead to a reduction in the quantum of the guideline. In Lam Ping Chun the trial magistrate had found strong humanitarian considerations to exist in that the respondent was only 18, that he was a stranger alone in Hong Kong and that he had not even a roof to cover his head. The Court expressly stated that these were not matters which fell within the ambit of that phrase. In our judgment nor do those factors mentioned by the magistrate in this instant case: plea, clear record and the coming to Hong Kong to earn a living.

12. It is acknowledged that the sentence of 15 months is intended to be a sentence to deter the coming of illegal immigrants. In the course of the hearing, we raised with Mr. Lugar-Mawson, who appears for the Attorney General, the question of the prosecution of the employers of men such as these for it seems to us that an even stronger deterrent would exist if these men were never offered work in the first place.

13. While there have been amendments to the Immigration Ordinance in its Part IVB, a Part which applies to the prohibition of the employment of illegal immigrants and others, which could be an aid to prosecution of the employer, those amendments are confined to that Part and that Part only. They do not extend to the sections which relate to aiding or abetting or the assisting in the remaining of an unauthorised entrant in Hong Kong. It might be advisable if the Legislature were to consider amendments to the Ordinance which might assist in the prosecution of employers under the more serious sections of the Ordinance. Given the nature of the construction industry in Hong Kong, for we have been informed and accept that on any construction site there is a great deal of sub-contracting, down even to the construction of a single room, it can be difficult without the assistance of the illegal immigrant himself, who may have to wait in Hong Kong for a considerable time in order to give evidence, to bring the employer to Court. We note in this connection the definition of employer contained in section 17G which comes within the ambit of Part IVB of the Ordinance and which reads:

"Employer means any person who has entered into a contract of employment to employ any other person as an employee or apprentice and the duly authorised agent, manager or factor of such first mentioned person."

Contracts of employment can mean any agreement whether in writing, oral, express or implied. It is, perhaps, unfortunate that these definitions cannot be employed outside the ambit of Part IVB.

14. But that having been said it is clear that the guidelines, laid down in So Man King, and followed in the subsequent cases have not been followed here. This Court has said on many occasions before that guidelines are not straight jackets. They are an aid to consistency but can be departed from for good reasons shown. The reasons given here are not such as would justify a departure though we can understand, as was said in So Man King, the possible sense of grievance in respect of sentence of a man caught in a construction site with the required two others as opposed to the man walking along the street who has not reached that construction site. This together with the lack of prosecution of the employer here, although we understand the reason for it, may well have been something which influenced the sentencing magistrate but it is incumbent upon the lower Courts to follow the guidelines issued by the Court of Appeal.

15. Mr. Law, who appears for the Respondents in this Court has indicated to us that he cannot contest the basis of the Attorney General's Application. He has elaborated upon the background of these individual respondents somewhat more fully than was done in the Court below. It seems clear that their main reason for coming to Hong Kong was to attempt to earn money to assist their families and their own livelihood. But that cannot come within the terms of strong humanitarian considerations.

16. The sentence that should have been imposed here was one of 15 months' imprisonment on each of the Respondents. This being an Application for Review, we will give, as is normal, a discount on what would have been the proper sentence. The sentences of 6 months are set aside and substituted for them are ones of 12 months' imprisonment.

17. The Review is granted and the sentence altered to that extent.