HKSAR v. SHANN YIH CHENG

HCMA304/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.304 OF 2000

(ON APPEAL FROM SKCC 605 OF 2000)

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J U D G M E N T

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1. The appellant, Shann Yih Cheng appeared before the magistracy charged with one offence each of possession of a false Brazilian passport, contrary to section 75(2) of the Crimes Ordinance and unlawfully remaining in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance.

2. In the court below, the prosecution offered no evidence in respect of the false passport charge and he was acquitted of that offence. He pleaded guilty to the offence of unlawfully remaining in Hong Kong for which he was sentenced to six months' imprisonment. He now appeals against his sentence. On 14 April 2000 he was allowed bail pending his appeal.

3. There is only one ground of appeal advanced on his behalf today. It was contended by senior counsel on his behalf that following the case of HKSAR v. Ho Tung Man [1997] 3 HKC 375, illegal entrants from Mainland China and Vietnam would not have been prosecuted had it not been for other offences committed. That being the case, the prison sentence he received was wrong in principle.

4. Ms Sin for the respondent informed this court at the bar table that there is in fact such an existing policy but it was only limited to nationals from China and Vietnam. Since the appellant is from neither of those places, he should not be entitled to benefit from such policy. I was not told of any reasons for such distinction.

5. The learned magistrate correctly referred to the guidelines in R. v. So Man-king and Others [1989] 1 HKLR 142 in which the Court of Appeal indicated that a guideline of 15 months' imprisonment should be imposed for a plea of guilty. Substantial discounts should be given in cases of voluntary surrender and humanitarian considerations. In the subsequent development of the law in this area, I was referred to the case of R. v. Ng Tung-fong [1992] 1 HKCLR 114 in which Silke V-P in his judgment said at p.119 :

" While he was properly prosecuted, being within the existing prosecution guidelines having been charged with another offence, nevertheless, once he was found not guilty of that second offence, it was open to the magistrate to discount the normal guideline sentence, given the peculiarities of the case before him. Without the possession charge the appellant would not, according to policy, have been prosecuted in the first place. Once that charge went he was in the unfortunate position of someone who was being prosecuted for an offence which, in the normal course, would have led to his unprosecuted repatriation to China. That a discount would have been proper is emphasised by that which we are now told is the current prosecution policy that is: not to prosecute an illegal immigrant simply on the basis that he has committed a second offence of entering Hong Kong or remaining in Hong Kong illegally."

The above passage was adopted in a differently constituted Court of Appeal in HKSAR v. Ho Tung Man [1997] 3 HKC 375. The appellant in that case pleaded not guilty to one count of attempted robbery and guilty to illegally remaining in Hong Kong. He was absolutely discharged on the robbery count and was sentenced to 12 months' imprisonment in relation to the immigration charge. On appeal, the court substituted a sentence which would have effected the appellant's immediate release. The reasons given by the Court of Appeal in that case is the same as that which was said by the Vice-President in Ng Tung-fong.

6. In the present case, the learned magistrate started with the guideline sentence of 15 months. He gave a significant discount, having given regard to the advance age of the appellant who was 78 years old, his plea of guilty and other mitigating circumstances. The fact remains that the policy, so far as it is applicable to nationals from China and Vietnam, is that they would not be prosecuted for the immigration offence simpliciter. I see no reason why the appellant should not benefit from this policy.

7. I would allow the appeal against sentence to the extent that the sentence should be varied to one which would effect the appellant's release from custody as from 14 April 2000.