HKSAR v. YEUNG CHI

HCMA 414/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 414 OF 2001

(On appeal from Fanling Magistracy Case No. FLCC 328 of 2001)

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REASONS FOR DECISION

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1. On 23 March 2001, after a trial lasting three days, Miss Eda Loh, Magistrate, convicted the appellant, a male whose age level as has been established by bone test to be 18 years and a National of the PRC, for the offence committed in February 2001 of remaining in Hong Kong without the authority of the Director of Immigration, after having landed unlawfully in Hong Kong. She sentenced him to 18 months' imprisonment. Now he appeals that sentence upon the general ground it is too severe.

2. The prosecution's case, no doubt accepted by the magistrate after trial, was that the appellant was discovered hiding in the chassis of a goods vehicle that had just arrived in Hong Kong from the Mainland.

3. In her reasons for sentence the magistrate referred to the landmark case of R v So Man King [1989] 1 HKLR 142, in which the Court of Appeal laid down the tariff for offenders, after a plea of guilty, of 15 months' imprisonment. She also noted that the appellant had, in April 2000, been convicted of the same offence, coupled with those of attempted robbery and resisting a police officer, for which he was sentenced to a total of 15 months' imprisonment. It follows that having served his sentence and presumably been repatriated to the PRC, he must have returned to Hong Kong to commit this offence almost immediately. She referred again to So Man King, where it is said,

"The court should take into account by upward adjustment any previous unlawful entry, whether resulting in prosecution or not."

4. She paid heed to the appellant's age of 18 years and that she had been told on his behalf that he had said his grandfather on the Mainland had heart problems. As to that, she observed that he had left home well-aware of his grandfather's medical condition, and that his counsel at the trial had conceded that there were no real humanitarian grounds warranting a departure from the tariff.

5. With all these factors in mind, the magistrate adopted an initial starting point of 18 months, then enhanced it because of the previous unlawful entry to 21 months, then she reduced it because of the appellant's relatively young age, to 18 months. That is the sentence, the length of which is the source of the appellant's complaint.

6. The guideline sentence in So Man King being, "After the almost inevitable plea of guilty," it follows that the appropriate starting point after trial should be higher. In the case of R v Wong Ying Ma. App. 750/91, that was said to be 21 months, with which I would take no issue. There being under So Man King an entitlement to increase the starting point for a subsequent illegal return to Hong Kong would justify further enhancement. And age, unless it be extreme youth, does not justify a reduction. In AG v Tai Man Bing & Others [1989] 1 HKLR 553, the Court of Appeal had this to say when dealing with illegal immigrants aged, like this appellant, 18 years:-

"We are satisfied that the fact that these young men were 18 years of age cannot be of any real assistance to them when pleading for leniency. The courts must take a severe view of offences of this kind, even when committed by 18 year olds, as it is this group which is particularly inclined unlawfully to enter Hong Kong."

7. It follows that the magistrate would have been entitled to adopt as her starting point a higher one than that which she adopted, and then find no feature as would warrant a reduction therefrom.

8. The appellant was dealt with in an unusually lenient manner and I find no grounds to reduce his sentence further. The appeal is dismissed.