R v TAI TAM CHING

IN THE COURT OF APPEAL

1994, No. 38

Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. This is an appeal against sentence by Tai Tam-ching who was convicted on his own plea on three charges by Mr. To at the San Po Kong Magistracy on 14 December 1993. The appellant is aged 42 and is a native of Chaozhou. He illegally entered the territory on 7 November 1993 and obtained employment at a supermarket at Ngau Chi Wan. He was apprehended on the 12 December 1993.

2. The three charges to which he pleaded guilty are as follows: Charge (A) Possession of a false re-entry permit, contrary to Section 75(2) of the Crimes Ordinance. Charge (C) Remaining in Hong Kong without the authority of the Director of Immigration, contrary to Section 38(1)(b) of the Immigration Ordinance. He was sentenced to six months' imprisonment on Charge (A) and nine months' imprisonment on Charge (C) consecutive to the imprisonment of Charge (A). This made a total of 15 months. The appellant does not appeal against these sentences and accepts they are correct.

3. He also pleaded guilty to Charge (B) before the Magistrate which was as follows.

4. That on 5 December 1993 at the Lee Cheong Supermarket he used a false re-entry permit which he knew to be false with intent to induce one SZE Ching-kwan to accept it as genuine and by so accepting to act to his prejudice, contrary to Section 73 of the Crimes Ordinance. For this he was sentenced to six months to be served consecutively to the other two sentences thus making a total of 21 months.

5. The person named in Charge (B) was the appellant's employer at the supermarket and, induced by the re-entry permit which he thought was genuine, had given the appellant a job.

6. The normal approach to these cases is for the charges to be dealt with concurrently and, for a first offender where there are no aggravating circumstances, the Court of Appeal has laid down a norm of 15 month's imprisonment in The Queen v. So Man-king [1989]1 HKLR 142. These guidelines were provided for the assistance of the sentencing courts but guidelines of course are not statutes and discretion is given to a sentencing court in circumstances where it considers it appropriate to depart from the guidelines.

The instances for departure from the norm mentioned in So Man-king are voluntary surrender to the authorities, and strong humanitarian considerations. These factors are not present in this case.

7. The matter which I have to consider boils down to this. Since the sentences on Charges (A) and (C) totalling 15 months must remain undisturbed, as there is no appeal against those sentences, has the appellant satisfied me that the sentence of six months consecutive on Charge (B) is either manifestly excessive or erroneous in principle? As Mr. Cheung, counsel for the Crown, points out, there are two aggravating factors in this case: (1) In 1987 the appellant had been convicted on one charge of using a Hong Kong identity card relating to another person and had been imprisoned for nine months. He had then been repatriated to China. (2) He had not only the possession of the false re-entry permit, contrary to Section 75(2) of the Crimes Ordinance but actually used that false instrument to obtain employment. The question is whether having regard to these two aggravating circumstances an addition of six months beyond the norm mentioned in the So Man-king is manifestly excessive.

8. In my judgment the total of 21 months probably lies at or near the extreme of the spectrum in these cases. The deterrent value of imprisonment in these cases plainly ought not to be pushed to its extreme. On the other hand, Magistrates are invested with considerable discretion in these matters. They have to use their experience to judge whether deterrence in these cases may have value. The Magistrate in this case had exercised his judgment very carefully and although he departed from the normal approach of making the charges concurrent, I am not satisfied that he has either erred in principle or has imposed a total sentence which is manifestly excessive. For these reasons the appeals must be dismissed.