THE QUEEN v. NGAN KA FONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 949 OF 1991

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BETWEEN

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J U D G M E N T

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Magistracy Appeal No. 949 of 1991

1. This appellant was convicted of (a) using an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177 and (b) remaining in Hong Kong without the authority of the Director of Immigration after having, landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong. He was sentenced to 18 months' imprisonment on each charge to run concurrently, he having pleaded guilty to the charges.

2. In his Statement of Findings, the Principal Magistrate said:

"Had this been his first time in Hong Kong I would have sentenced him to fifteen months imprisonment. However the case of the Queen v. So Man-king (1989) HKLR 142 indicates that a longer term is appropriate for an illegal immigrant who has unlawfully entered Hong Kong in the past."

It was for this reason he sentenced the appellant to 18 months' imprisonment on each charge.

Magistracy Appeal 1068 of 1991

3. This appellant was convicted of (a) resisting arrest, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212 and (b) remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance. He was sentenced to 1 month imprisonment on the A charge and 18 months imprisonment on the B charge, to run concurrently, he having pleaded guilty to both charges.

4. The Principal Magistrate said in passing sentence:

"In considering sentence I took into account the Appellant's plea of guilty and the submission made in mitigation on his behalf. I was aware that a previous sentence of 15 months imprisonment for an identical offence had not proved sufficient deterrent to prevent him entering Hong Kong illegally. I considered 18 months' imprisonment to be appropriate and sentenced him accordingly."

5. In both the above appeals, the learned Magistrate adjusted the sentence upwards from the norm of 15 months imprisonment on the basis that the appellant had entered Hong Kong before. That approach was consistent with the approach of the Court of Appeal in R. and So Man King MA 408 of 1988 in which on referring to the previous guideline of 15 months as being the normal sentence for this offence of remaining in Hong Kong without the authority of the Director of immigration, they said :-

"The guideline already allows for the almost inevitable plea of guilty, but voluntary surrender to the authorities should warrant a substantial discount, and strong humanitarian considerations should always be honoured, even to the extent sometimes of suspending whatever prison sentence is otherwise though appropriate. On the other hand, the Court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence, such as the actual use of a forged or other person's identity card to obtain some particular benefit."

6. In MA No. 334 of 1991, R. v. Or Chun-ping and Others, Barnes J. gave judgment on the 1st August 1991 reducing sentences from 18 months to 15 months in respect of one charge of remaining in Hong Kong unlawfully etc, contrary to the provisions of the Immigration Ordinance and two charges of using an identity card relating to another person, contrary to the provisions of the Registration of Persons Ordinance. He said :-

"The second ground of appeal is that the Learned Magistrate was wrong to make anupward adjustment of the normal sentence against multiple evaders, that being obviously unfair after the implementation of the current executive policy in November 1990. What Mr Lee was getting at with regard to this ground of appeal was that, since late 1990 it has been the policy not to prosecute but to repatriate even multiple evaders, unless they commit some other offence warranting a prosecution, so that those appellants convicted of entering here unlawfully previously should be regarded now as illegal with a clear record. The enhanced sentences imposed by the Learned Magistrate were imposed according to his Reasons for Sentence, because he was of the view that he was obliged 'to make allowances for their previous convictions'."

7. He went_.on to say :-

"Whilst the Magistrate's approach in doing that was consistent with So Man King, it is not an approach which should be followed now that the policy with regard to multiple evaders has changed. Accordingly, I agree with Mr Lee that it is unfair to impose a higher sentence simply because a person convicted of` an illegal immigrant offence has been here before unlawfully.

The proper sentence in their case on the illegal immigrant offences is imprisonment for 15 months."

8. Mr Lambert Lee relies upon the above authority in seeking to have the sentences in the two above appeals reduced to 15 months imprisonment in respect of the illegal immigrant charges.

9. Mr Josiah Lee, Crown Counsel, for the respondent does not oppose the appeals, and concedes that it would be fairer for a 15 months sentence to be imposed.

10. Whilst I was not entirely happy at the idea of a person breaking the law on previous occasions finding himself being treated as a first offender, nevertheless in view of the current prosecution policy, I decided to follow the earlier decision in this Court and I therefore allowed the two above appeals, reducing the sentences in each case to 15 months imprisonment.

11. In the third appeal, MA No.974/91, R. v. Ngan Ka-fong, I reserved my judgment for further consideration of the submissions. Here the appellant was charged on one charge of remaining in Hong Kong without the authority of the Director of Immigration, and sentenced to 18 months imprisonment. He had two previous convictions, one for using a forged travel document and one for making a false representation to an immigration officer. In those two previous convictions, he had been sentenced to concurrent terms of nine months imprisonment and three months imprisonment respectively.

12. In his Statement of Findings, the learned magistrate says :-

"The authorities an sentencing illegal immigrants indicate that the normal fifteen months sentence can be increased to reflect a previous unlawful entry to Hong Kong. (The Queen and So Man-king and Others [1989] 1 HKLR 142).

I considered whether or not the Appellant.had been prosecuted within the existing prosecution policy. (The Queen v. Ng Kin-hung (1991)1 HKLR 81). This policy varies from time to time and currently appears to be as set out in the judgment of The Queen and Ng Tung-fong (unreported) Magistracy Appeal 1296 of 1990 the reasons for which were handed down on 19th April 1991. There it is stated (p.4) that :-

'an illegal immigrant simpliciter whether or not he has previously entered Hong Kong illegally is simply repatriated to China and is not prosecuted.'

I had this judgment in mind when sentencing the Appellant and considered that as the Appellant had a previous conviction arising from a previous unlawful entry then he had been properly prosecuted within the policy. I therefore sentenced the Appellant to eighteen months imprisonment. There were no special humanitarian considerations."

13. It appears that between the time that he gave his judgment and prepared his Statement of Findings, the magistrate had second thoughts. He said :-

"However on further reading this judgment (referring to R. v. Ng Tung-fong) it seems that this Appellant may not fall within the prosecution guidelines. There seems to be no distinction made between an illegal immigrant simpliciter who has entered Hong Kong earlier without prosecution and one who was prosecuted and convicted in respect of an earlier unlawful entry.

If the Appellant was not prosecuted in accordance with the guidelines than following the Queen v. Ng Tung-fong, I may have been incorrect in imposing a sentence of imprisonment.''

14. Mr Lambert Lee has also referred me to Attorney General v. Ng Kin-hung and Others [1991] 1 HKLR 81, where the Court of Appeal giving judgment on the 15th August 1990, said in relation to the then prosecution policy :-

"The policy has been varied or expanded from time to time and is set out in many reports, but it may be useful to reiterate that the present position, as we understand it, is that any illegal immigrant from China discovered within the territory will be arrested and repatriated, but will not be prosecuted before repatriation unless he or she -

(1) is to be charged at the same time with some other offence, e.g. possession of a forged identity card;

(2) has entered Hong Kong on an earlier occasion and been repatriated;

(3) is one of three or more immigrants found on a construction site or other place of employment such as a factory, restaurant or farm; or

(4) is one of an organised group, whether that group be self-organised or organised by a third party."

15. On 21st March 1991 in R. v. Ng Tung Fong M.A. 1296 of 1990, the Court of Appeal dealt with the situation where an individual was prosecuted outside the existing policy. They referred to the recommendation of that Court in So Man King of an upward adjustment in sentence in the case of a previous unlawful entry whether that resulted in prosecution or not. They noted that the prosecution policy had changed again and that an illegal immigrant simpliciter, whether or not he had previously entered Hong Kong illegally would be simply repatriated to China and not prosecuted. They therefore noted that category (2) in Ng Kin Hung no longer existed within the prosecution policy. They went on to say :-

"The courts do not dictate to the executive, but if the courts, properly advised, consider that executive policy had been applied unfairly to an individual then it is proper for the courts to mitigate that unfairness by reducing the length of any sentence it might think fit to impose - but always bearing in mind that an offence contrary to law has been committed. To effect this sentencing courts have a discretion to depart from guidelines."

16. They went on to support judges who had imposed reduced sentences on illegal immigrants who were prosecuted outside the normal prosecution policy.

17. On the 7th May 1991, Barnes J. gave judgment in MA No. 1406/90 R. v. Chan Siu-ping, in a case where the appellant had been charged with one charge of remaining in Hong Kong without the authority of the Director of Immigration. The appellant had a clear record, but on the admitted facts put before the magistrate, he had come to Hong Kong illegally on a previous occasion, but had been repatriated rather than prosecuted.

18. The judge noted that the new policy had come into force on the 16th November 1990. He said :-

"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."

19. Relyiny on the above authorities Mr Lambert Lee seeks an order for the appellant's immediate release.

20. Mr Josiah Lee, for the respondent, has produced in court a written document dated 18th September 1991 signed by the Senior Assistant Crown Prosecutor, setting out what is said to be the current policy on the prosecution of illegal immigrants. This states :-

"Since November 1990 the categories of illegal iminigrants who are prosecuted for remaining in Hong Kong without the authority of the Director, having landed unlawfully, under section 38(1) of the Immigration Ordinance, Cap. 115 are:

(1) All IIs found at places of employment to be prosecuted regardless of the number found.

(2) All IIs committing offences whether immigration related or not.

(3) All IIs who have been previously sentenced to a term of imprisonment for an offence other than:

(a) illegally remaining;

(b) using an I.D. card relating to another person."

Mr Josiah Lee stresses the fact that the appellant on a previous occasion was convicted and sentenced to imprisonment in respect of offences of using a forged document and making a false representation to an immigration officer. These, he says, do not bring him within the exception in 3(b) above. The appellant was properly prosecuted under the present policy document.

21. Mr Lambert Lee retorts that the appellant was not prosecuted within the policy document which was signed on the 18th September 1991 because his offence had been committed in September.

22. In my judgment, the appellant was properly prosecuted under the policy which has remained the same since November 1990. His previous offences when he had entered the Colony on the prevous occasion illegally, were offences which brought him within that policy.

23. Whilst I do not consider that he is entitled to immediate release, nevertheless, for the reasons set out in the earlier two cases, I will allow the appeal and reduce the sentence to 15 months imprisonment.