THE QUEEN v. NG KING

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HEADNOTE

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Sentencing Illegal Immigrant cases - When imposing sentence for offence contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115 and related offences of using a forged identity card or the idenity card of another person. Magistrates should take into account the period spent in custody between the date of arrest and the date of sentencing.

It is proper for a magistrate following conviction after trial in such cases to impose a sentence in excess of 15 months, which is the tariff after a plea of guilty.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 863 of 1990

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JUDGMENT

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1. The appellant, an illegal immigrant from Mainland China pleaded not guilty to a charge of using another person's identity card but was convicted after trial and sentenced to 18 months' imprisonment. He now appeals against that sentence.

2. The magistrate in his statement of findings had this say:-

"Had the appellant pleaded guilty to the charge, I would have imposed a term of 15 months imprisonment. However, he chose to fight the case and I felt that a term of 18 months imprisionment was properafter a trial which lasted several hours."

3. Mr. Grounds, who appears for the appellant relies on the judgment of Duffy J. in The Queen v. KONG CHEUK CHI, Magistracy Appeal No. 721/89, where the learned judge at p.2 said:-

"A tariff sentence normally deals with a situation after trial. Mitigation, including a plea of guilty, might reduce the tariff sentence. But a tariff sentence, that is after all the sentence recommended to meet the 'gravity of the offence', should not be increased because a plea of not guilty is maintained."

4. I agree with this as a statement of sentencing principle where the tariff is one dealing with a situation after trial. However, that is not the case in respect of charges bought under section 38(1) of the Immigration Ordinance or the related offences of a forged identity card or using the card of another person. In respect of such cases, the court of Appeal has stated that the tariff of 15 months is one to be applied after a plea of guilty. This was confirmed by Cons, Ag. C.J., in The Queen v. SO MAN KING, Magistracy Appeal No. 408/88, where he stated:-

"The guideline already allows for the almost inevitable plea of guilty."

5. The tariff is therefore one peculiar to these sort of charges. The defendant, having been convicted following trial, cannot in mitigation claim the benefit of a guilty plea, which not only indicates remorse but saves the time of the court.

6. In my view it was quite proper for the magistrate to impose after trial a sentence in excess of the 15 month tariff.

7. Mr. Grounds raised another matter in the course of the appeal. The appellant was arrested on the 30th March, 1990 but was not brought before the magistrate until the 18th May, 1990. Section 67A of the Criminal Procedure Ordinance, Cap.221 provides that the length of any sentence of imprisonment imposed on a defendant shall be reduced by any period spent in custody pursuant to an order of the Court prior to the date of sentence. In many of the cases involving illegal immigrant related charges the defendant is brought before the magistrate within a day or so after arrest. In some cases however such as the one now before me a considerable period of time elapses between the date of arrest and the defendants appearance in Court. The provisions of Section 67A result in the latter serving a longer term in custody than others sentenced to a similar term of imprisonment for a similar type of offence. I am told by Mr. Grounds this leads not surprising to a feeling of injustice and results in additional work for the Legal Aid Department in processing applications for the Legal Aid Department to bring appeals to get the lost days credited against the sentence. I have noticed in earlier appeals that some magistrates do attempt to redress the problem by ordering that the sentence shall run from the date of arrest.

8. I agree that the system can result in apparent injustices but this can be remedied if magistrates, in fixing the appropriate sentences in such cases, take into account the days spent in custody prior to the date of sentence.

9. In respect of the case now before me I allow the appeal to the extent that the sentence will be reduced by the number of days spent in custody between inclusively the date of arrest and the date of sentencing.