Read the full judgment text of CAAR 000016/1991 on BabelCite. This Court of Appeal judgment was delivered on 13 March 1992 before Silke VP, Power JA, Penlington JA.
Criminal law – sentencing – Immigration Ordinance s.38(1)(b) – remaining in Hong Kong without authority of Director of Immigration – attempted theft – non-indigenous residents of Sha Tau Kok hinterland crossing border to commit offence and intending to return immediately to China – guideline tariff of 15 months under R v. So Man-king & others [1989] 1 HKLR 142 – whether non-indigenous Sha Tau Kok hinterland residents are to be treated as other unlawful entrants – whether intention to return immediately after committing offence is a mitigating factor – whether sentences for 'remaining' and attempting to steal should be consecutive rather than concurrent – weight of youth and humanitarian grounds in mitigation – discount for sentence increased after expiration of original sentence under The Attorney v. Wong Kwok-wai [1991] 2 HKLR 384. The Court of Appeal held that non-indigenous residents of the Sha Tau Kok hinterland, of whom there are approximately 16,000, are to be treated in the same way as other unlawful entrants and that the 15-month tariff in So Man-king applies to them. Only indigenous villagers of Sha Tau Kok and holders of cross-border farmer or shopping permits issued by the Chinese authorities are tolerated on the Hong Kong side of Chung Ying Street. The fact that an unlawful entrant came to Hong Kong for the limited purpose of committing a criminal offence intending to return immediately to China is not a mitigating factor telling in the offender's favour, since the limited duration of stay is outweighed by the aggravating circumstance that the offender crossed the border to commit crime. The sentences for the 'remaining' offence and the attempting to steal offence should be consecutive because, although proximate in time, the two offences are of a quite different character. The 2nd respondent's youth is a proper mitigating factor reducing the tariff sentence, but no weight should be given to the 1st respondent's humanitarian circumstances (mother's poor health and depression following his brother's death) following the principle in Attorney General v. Liu Chi-ping, Application for Review No. 1 of 1990, because the offender came to Hong Kong with knowledge of the relative's serious illness. Following The Attorney v. Wong Kwok-wai, a discount should be given where the Court of Appeal increases a sentence at a time close to the end of the original sentence, as occurred here. The 1st respondent's sentence was increased from 6 months to 12 months on the 'remaining' charge, with the 6-month sentence for attempting to steal ordered consecutive; the 2nd respondent's sentence was increased from 6 months to 9 months on the 'remaining' charge, with the 6-month sentence for attempting to steal ordered consecutive; all sentences ordered to run from the date of first court appearance.
Legal issues: Application of So Man-king tariff to non-indigenous Sha Tau Kok residents who cross the border to commit offences · Effect of intention to return immediately on sentencing for the 'remaining' offence · Consecutive versus concurrent sentences for 'remaining' and 'attempting to steal' offences · Weight of humanitarian and youth mitigators in fixing 'remaining' sentence · Discount for increased sentence after expiration of original sentence
Outcome: Application for review allowed. 1st respondent's sentence on the 'remaining' charge increased from 6 months to 12 months, and the 6-month sentence on the attempting to steal charge ordered to be consecutive. 2nd respondent's sentence on the 'remaining' charge increased from 6 months to 9 months, and the 6-month sentence on the attempting to steal charge ordered to be consecutive. All sentences ordered to run from the date of first court appearance.