HKSAR v. WONG SIU CHING

HCMA 143/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 143 OF 2000

(ON APPEAL FROM FLC 2344/1999)

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JUDGMENT

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Hon. Lugar-Mawson J:

1. The appellant, Wong Siu-ching, from the Mainland, appeared before Mr David Duggan, Principal Magistrate at Fanling Magistracy on 19 January 2000. She admitted a charge of remaining in Hong Kong unlawfully, but denied the second charge of offering an advantage to a public servant.

2. The prosecution case was a simple one. The principal witness at the trial was an officer on border patrol whose attention was attracted to the appellant. Upon stopping her and learning that she was an unlawful entrant, he said that she opened her handbag and produced a pile of Renminbi notes and indicated that she wished to be let go. She repeated that request and the officer arrested her.

3. At trial the appellant elected to give evidence. She denied having produced the banknotes to the arresting officer.

4. The learned magistrate, in a short but succinct reasons for verdict, indicated that he disbelieved the appellant's evidence and accepted the arresting officer's.

5. He had the advantage, which I do not have, of having heard all the witnesses, both for the prosecution and for the defence - that is the appellant - give evidence.

6. The issue at trial essentially was one of credibility. There is nothing in the transcript of the proceedings of the trial, or the learned magistrate's reasons for verdict, which I have before me, which indicates that he, in any way, fell into any form of error.

7. Before me, on appeal this afternoon, the appellant urges again that the police officers gave incorrect evidence to the magistrate. There is, and I made it clear to her, is nothing in the transcript which indicates that they were lying or indicates that the learned magistrate was in any way incorrect in accepting their evidence.

8. In the absence of supportable grounds for appeal against conviction I dismiss the appellant's appeal against conviction on the second charge against her of offering an advantage to a public servant.

9. As to sentence, the appellant has one previous conviction in Hong Kong, imposed at South Kowloon Court on 19 July 1999 for a breach of condition of stay for which she was sentenced to 2 months' imprisonment suspended for two years.

10. For the offences with which this appeal is concerned, she was sentenced to 6 months' imprisonment in respect of the unlawful remaining offence and 12 months' imprisonment in respect of the offering advantage offence. The learned magistrate ordered that she serve those sentences consecutively. Also, as he was bound to in the absence of strong reasons to the contrary, he activated a suspended sentence of 2 months' imprisonment imposed on 19 July 1999 and ordered that the appellant serve that period of imprisonment consecutively to the two sentences he had imposed.

11. Before me this afternoon the appellant essentially asks me to exercise a degree of mercy and reduce the sentences.

12. She has, she claims, a mother in the Mainland who is unwell and she wishes to be with her. There is, of course, no way for me to check the accuracy of that claim, which is one commonly made before the courts of Hong Kong by Mainland defendants and appellants.

13. It has been established, I believe, since 1988 that the guideline sentence for the offence of unlawful remaining in Hong Kong is 15 months' imprisonment, to be imposed even after a guilty plea. It is also accepted sentencing practice that when a person faces another offence in addition to a charge of unlawful remaining, that the sentence for the other offence be served consecutively to the sentence for the unlawful remaining offence. Indeed, given what I believe to be the prosecution's divisions practice, it would be extremely uncommon for a person just to face an offence of unlawful remaining.

14. Here the learned magistrate in reducing the period of imprisonment from 15 months to 6 months thus afforded the appellant a considerable reduction in sentence. A sentence of 12 months' imprisonment for the offering an advantage to a public servant offence reflects the serious nature of that offence.

MR LAM: My Lord, I believe you said the -- offering advantage, the sentence was 12 months but in fact it's 6 months only.

COURT: That's all right. Sorry, 6 months, is it? No, 12 months.

MR LAM: The unlawful remaining is 12 months.

COURT: Yes, yes, quite right, quite right in fact I misunderstood.

15. 12 months for the unlawful remaining is a substantial reduction on the guideline sentence of 15 months' imprisonment. In relation to the offering an advantage to a public servant offence, this is a serious offence, to my mind a 6 month prison sentence, even for a first time offender is lenient. I see nothing wrong in total sentences of 18 months' imprisonment for these two offences.

16. As I have said, the learned magistrate was well within his rights and in fact acted perfectly correctly in activating the suspended sentence of imprisonment as there were no compelling reasons for him not to do so. The appellant's appeal against sentence is dismissed.

MISS WONG: Well, I'm sorry, I still want to say one thing.

COURT: Sorry, your appeal has been dismissed. I'll hear you. What is it that you want to say?

MISS WONG: Well, in fact, well the view of what of a matter may not represent justice, but everyone has got his own justice in his heart.

COURT: Young lady, you've had a trial before a very experienced magistrate who dealt with your case very thoroughly and very fairly. The appeals are dismissed.