HKSAR v. Ng Kam Kin

HCMA000208/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 208/98

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Coram: The Hon. Mr. Justice Hartmann in Court

Date of Hearing: 1 May 1998

Date of Judgment: 1 May 1998

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J U D G M E N T

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1. The Appellant in this matter was convicted on his own plea of the single count of remaining in Hong Kong without the authority of the Director of Immigration having landed here unlawfully, contrary to Section 38(1)(b) of the Immigration Ordinance, and was sentenced to 18 months imprisonment.

2. The Appellant was found hiding on a construction site and admitted to police officers that he had unlawfully entered Hong Kong the previous day. It was accepted that the Appellant has two previous convictions; one of which was similar, namely a conviction in 1991 of coming into Hong Kong and remaining here unlawfully. In respect of that earlier offence he was sentenced for 15 months' imprisonment. The Magistrate took into account that the Appellant was a farmer in China where he had his family and that economic imperatives compelled him to come to Hong Kong.

3. The Magistrate took into account that, according to the guidelines laid down in So Man King & others (1989) 1 HKLR at 142, the normal sentence in this type of case, after a plea of guilty, is 15 months' imprisonment. That authority, however, makes it clear that the sentence, after a plea of guilty, should be greater if there has been any previous unlawful entry into Hong Kong, whether resulting in prosecution or not. In light of this guideline, the Magistrate considered that the sentence should be increased from 15 months to 18 months' imprisonment.

4. The Appellant has expressed surprise that he should be serving 18 months' imprisonment when other prisoners are only serving 15 months or less. But this Appellant has offended before. He has been previously convicted of coming into Hong Kong unlawfully and remaining here unlawfully. That is an aggravating feature which results in a higher sentence. That is why the Magistrate in this case increased the sentence from the normal one of 15 months to 18 months.

5. The Appellant has explained that he has an injury to his arm and that he requires an operation on the Mainland. He has exhibited a document which indicates that he should report for his operation in the near future. I sympathise with him but, of course, our prisons are sophisticated institutions which have excellent medical facilities. If necessary, he can receive attention here in Hong Kong.

6. The appeal is dismissed.

Representation:

Mr. Joseph To, S.G.C. for Director of Public Prosecutions

Ng Kam Kin, Appellant, in person