R. v. Pang Lok Sut

HCMA000471/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 471 OF 1996

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Coram : Hon Patrick Chan, J. in Court

Date of hearing : 11 July 1996

Date of judgment : 11 July 1996

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J U D G M E N T

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1. The appellant pleaded guilty to one count of remaining unlawfully in Hong Kong without the authority of the Director of Immigration. He was also convicted after trial of two counts : (1) possession of an identity card belonging to another person; and (2) assaulting a police officer. He was sentenced to 15 months' imprisonment on the immigration charge, one month on the charge of possession of identity card, to run concurrently with the 15 months, two months on the assault charge to run concurrently with the one month but consecutive to the 15 months, making a total of 17 months.

2. The facts are as follows. On 17th December 1995 at 9:42 p.m., a patrolling police officer saw the appellant in the street and suspected him to be an illegal immigrant. Upon questioning by the officer, the appellant admitted that he came to Hong Kong illegally from Shenzhen two days ago and had no identity card. When he was searched, the appellant was found to have an identity card belonging to a female person. When he was further questioned, he started to run. The officer gave chase. When the officer was almost able to catch him, the appellant hit the officer with his right elbow. A struggle ensued. The appellant was subdued and arrested for remaining unlawfully in Hong Kong and possession of an identity card belonging to another person. The officer called for reinforcement and another officer arrived. Having learned what happened, that other officer arrested the appellant for assaulting the police officer. That was in accordance with the practice that it was not for the victim officer to charge a person for assaulting him.

3. The appellant gave evidence. He said he came to Hong Kong without the permission of the Chinese Government. He said that the purpose of his coming to Hong Kong was to recover $1.8 million from a person called Chan Ming who lived in Chai Wan. He said that $1.8 million was due and payable to the Chinese Communist Youth League of which he was a member. He admitted, however, that he was not instructed by the Communist Party to collect the debt. He also admitted that he had not applied for any travelling document or visa to Hong Kong. He said he came to Hong Kong on 15th December but felt sick and stayed with a friend for two days. On 17th December, he walked around and saw an identity card on the ground in the park. He said that he knew that in Hong Kong an identity card was a very important matter for a person. So he waited for 40 minutes at the place to see whether anyone would come to retrieve the identity card. Unfortunately, no one came. So he picked it up and he said he intended to return the identity card to the owner. He then went to sleep in a container and when he was sleeping, the police came, kicked him and pulled him out of the container. He said he was then arrested and assaulted. He said that he suffered such injury that he fainted at one stage.

4. The learned Magistrate, in assessing the evidence, said she did not believe his evidence at all about the identity card. She also said that she did not believe that the appellant was assaulted since his injuries were not consistent with the medical report. Having assessed the evidence, the learned Magistrate convicted him of the first count of possession of an identity card and the second count of assaulting the police officer.

5. In this appeal before me, the appellant repeated basically what he said in the court below. He said that he wanted to return the identity card which he picked up to the real owner by post or by returning it to the police. He said he was assaulted by the police when he was sleeping. He also alleged that he did not have a fair trial. He said he was treated barbarously at the Magistrate's court. Finally, he submitted that although he pleaded guilty to the charge of remaining unlawfully in Hong Kong, he thought that this could not be right because Hong Kong was Chinese territory and had been wrongfully ceded to the British Government as a result of the Opium War. He also gave me a lecture on Chinese history. I am of course not an expert in history. Nor am I concerned as a court of law with what happened in China in the past. What I am concerned with is what happened to the appellant on 17th December 1995 in a Hong Kong street.

6. I think it is an indisputable fact and it was admitted by the appellant that he had illegally entered Hong Kong. He had illegally remained in Hong Kong at the time when he was arrested and that constituted the third offence. It is also indisputable and admitted by the appellant that he was at the material time in possession of an identity card belonging to another person. His explanation as to why he had come to possession of the identity card and his plans to return it to the owner is, in my view, totally incredible. It is not surprising that the learned Magistrate rejected it. Finally, his evidence that he had been assaulted by the police was not supported by the medical evidence. According to his description to the court about the way he was assaulted, he should have suffered much more serious injuries than was mentioned in the medical report. In this court, he mentioned that he was almost dying and that he had written a death note. I am afraid that what he had said was not borne out by the evidence.

7. I see no good reason why the police in intercepting an illegal immigrant would have assaulted him. I think the minor injuries which he suffered were consistent with the struggle which the police said had happened. In fact, the officer also suffered some minor injuries. So having considered the evidence and the submissions of the appellant, I am in complete agreement with the assessment of the evidence by the learned Magistrate. The conviction is clearly correct.

8. The sentences are not in any way excessive. The usual tariff for remaining in Hong Kong would be 15 months and that was what the appellant got. For assaulting the police, I think a two month sentence would be appropriate. As that is a separate incident, the sentence should be consecutive. There is absolutely no merit in the appeal and I dismiss it.

Representation:

Mr Wesley Wong, Senior Crown Prosecutor, for Crown

Appellant Pang Lok Sut, in person