HKSAR v. MA MAN HUNG @ CHEUNG CHUN WAI

HCMA 606/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 606 OF 2000

(ON APPEAL FROM ESCC 2032/2000)

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J U D G M E N T

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1. The Appellant appeals against his conviction on one offence of Remaining in Hong Kong without the Authority of the Director of Immigration after having landed unlawfully in Hong Kong contrary to s. 38(1)(b) of the Immigration Ordinance, Cap 115. He was sentenced to 18 months' imprisonment.

2. He admitted the facts before the Magistrate. Those facts showed that he was arrested in North Point. Questioning by the police revealed that he was an illegal immigrant and fingerprint evidence confirmed that he had been convicted in respect of previous unlawful entries into Hong Kong. Those previous entries were in 1988, 1992, 1996 and 1999. The most recent entry before this offence was a Breach of Condition of Stay, which resulted in a 3 month sentence of imprisonment suspended for 2 years.

3. The Accused told the Magistrate that he pleaded guilty to the charge and he agreed the facts, which were very simple. He admitted his previous record.

4. In mitigation, the Appellant through his counsel, told the Court that he was married with 5 children in China and that he worked there as a farmer. The Duty Lawyer told the Magistrate that he had obtained instructions as to the reason why the Appellant came to Hong Kong and had been told by the Appellant that it was purely because of economic reasons, so that he could make more money to support his family.

5. The Appellant now appeals against his conviction on the ground that he was the holder of the two-way permit between April and May of 1999 and it was on the basis of that permit that he came to Hong Kong. He said that his real name is Cheung Chun Wai, a name that does not feature amongst any of the aliases that are on his criminal record.

6. In Court today, the Accused produced a Chinese passport with a visa chop apparently showing that he was allowed to enter Hong Kong between 20 and 27 May 1999. He also produced a temporary Chinese ID Card. The Appellant said that he was very confused in Court before the Magistrate, that he did not know what was happening. He did not tell the police, or the Magistrate, that he was here on a two-way permit, because he had given his passport to a friend who had gone to China. He did not know the name of the friend. His basic contention is that he was wrongly charged and convicted.

7. The situation in this case is very similar to that in HKSAR v Wong Chi Yuk, MA 381 of 1999. There in a very lengthy judgment the Court of Appeal considered a similar case and whether or not the Court could entertain an appeal under s. 113 of the Magistrate's Ordinance, Cap. 227 where the plea had not been an equivocal plea. The circumstances which can render a guilty plea a nullity are therein examined; none of those circumstances apply to this case.

8. The Court held that an appeal against a conviction in respect of which there has been an unequivocal plea, to a charge which is not a nullity, is not one which can be entertained by the Court. It is obvious that the plea in this case was an unequivocal plea of guilty. This Appellant, who is not a stranger to our Courts, knew exactly what he was doing and what he was facing when he went before the Magistrate. He chose to conceal information from the police and also from the Magistrate, and proceeded on the basis of an unequivocal plea of guilty to the offence with which he was charged. The admitted facts supported the charge.

9. Given those circumstances, there is no basis on which I can deal with this appeal and this appeal is dismissed.