R. v. TIN WING

IN THE COURT OF APPEAL

1995, No.763
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant, with others, faced charges of robbery, theft and remaining unlawfully in Hong Kong. He was acquitted of the robbery and theft charges and was sentenced to imprisonment for 15 months on the remaining charges.

2. Mr. Ng, who appears for him today, argues that the circumstances of this apprehension was such that but for his being charged with the robbery and theft charges, he would have faced only summary repatriation. He relies upon The Queen v. Ng Tung Fong [1992] 1 H.K.C.L.R. 114, where there was a very similar situation. In the judgment of the court Silke, V.-P., having referred to the policy governing the prosecution of illegal immigrants, said at p.116:

"This was that any illegal immigrant from China discovered within the territory will be repatriated, but will not be prosecuted before repatriation unless he or she -

(1) is to be charged at the same time with some other offence, e.g. possession of a forged identity card;"

Silke, V.-P. went on at p.119 to say:

"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."

Likewise the present case, this applicant, once the robbery and theft charges went, 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. The court is satisfied that the proper approach is that which was adopted in The Queen v. Ng Tung Fong.

3. The application will be allowed. The hearing of the application is treated as the hearing of the appeal and the sentence is reduced so as to effect the immediate release of the applicant. That does not in the present case mean that he will be released but rather that he will be detained in custody under the Immigration Ordinance until his repatriation.