The Attorney General v. Chan Wai-lan and Others

CAAR000023/1981

Coram: Roberts, C.J., Li & Barker, JJ.A.

Date of Judgment: 15th December, 1981.

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DECISION

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Roberts, C.J. -

Preliminary

1. The Attorney General, with leave, applied to the Court of Appeal for the review of five sentences passed on the 4th November, 1981 by a magistrate at Causeway Bay.

2. At the conclusion of the hearing before us on the 4th December, we said that we were satisfied that the sentences imposed by the magistrate in all five cases were wrong in principle and manifestly inadequate, but that we would give our full reasons in due course.

3. In the meantime, we suggested that, as a guideline to magistrates, the usual fine, for a first offence against section 17C(3) of the Immigration Ordinance, should lie within the range of $150 to $200. This should be increased appropriately if there were aggravating circumstances and reduced if there were mitigating circumstances.

Statement of facts

4. The five respondents were selected by the Crown at random from a group of 37 defendants, who all pleaded guilty before the magistrate, on the 4th November, 1981, to the offence of failing to produce proof of identity for inspection, contrary to section 17C(3) of the Immigration Ordinance (Cap. 115).

5. Each of the 37 defendants pleaded guilty and was given an absolute discharge, a conviction being recorded against him.

6. There were no unusual circumstances in any of these five cases. Three of the defendants were found without proof of identity, in the early hours of the morning, when the public light bus or taxi in which they were passengers was stopped at a police road block.

7. The other two defendants were stopped and searched by police officers during the morning, when found in the street.

8. All five were arrested and taken to a police station and were able to identify themselves to the satisfaction of the police by arranging for a friend or relative to produce proof of identity, within a fairly short time.

Approach of Court of Appeal to Application for Review

9. Before dealing with the cases before us, we think it desirable to restate the principles which we believe should apply on the hearing of an application for review under section 81A of the Criminal Procedure Code, in view of the criticism which has been expressed of the approach adopted by the Full Court in the Attorney General v. LAM Kam-tai⁽¹⁾.

10. This application was heard not long after the first introduction of the review procedure. Rigby, C.J., who delivered the judgment of the Full Court, laid down the following principle, which has been applied ever since -

"To justify interfering with the sentence imposed by a lower court it is clearly not enough that the members of this court, whether individually or collectively, consider the sentence a lenient one and themselves, whether individually or collectively, would have passed a different and heavier - or lesser - sentence. Different people will inevitably take different views with regard to the appropriate punishment in any particular case. In matters of sentence opinions must necessarily vary greatly. A discretion is given by the law to the judge or magistrate who tries a case, sees the parties concerned and hears the facts presented, whether in aggravation or mitigation of sentence, and an appellate court will not, and should not, lightly interfere with the discretion rightly and properly vested in the trial courts unless there are very good grounds which would justify it in so doing."

11. The Attorney General conceded, in argument before us, that this was a general proposition with which he could not quarrel; and we agree. However, he criticised the following later passage in the same judgment of Rigby, C.J. -

"But we think that the same principles should equally apply whether it be an appeal against manifest excessiveness or manifest inadequacy. Is the sentence so manifestly inadequate or so grossly excessive that it leaves one with a sense of shock or outrage? Was the punishment imposed so grossly excessive or so manifestly inadequate in the circumstances that no judge or magistrate exercising a proper judicial discretion ought to have imposed it? Is the sentence out of all proportion to the gravity of the offence. In our view, these are the principles and these are the tests which this court ought to apply in considering applications brought before it under the provisions of section 81A of the Criminal Procedure Ordinance."

12. In a later Application for Review in the same year, Re Applications for Review of Sentences⁽²⁾ Huggins, J. dissented from the view expressed by Rigby, C.J. in the earlier case of LAM⁽¹⁾ in the following terms -

13. We agree with these observations of Huggins, J. In our judgment, the Full Court was not correct in Lam's Case⁽¹⁾ in attempting to give to the words "manifestly inadequate" or "manifestly excessive" or "wrong in principle" the gloss which it did and which we do not think was justified.

14. Superior courts have been interfering with sentences imposed by lower courts for a long time, following the principle that they will do so if the sentence is manifestly excessive or manifestly inadequate, that is to say, if it is clearly wrong in one direction or the other.

15. We consider that the same principles which apply in ordinary appeals should be adhered to on an application for review and that Lam's Case⁽¹⁾ should not be followed in this regard.

16. It was suggested in the Applications for Review Case⁽²⁾ that Counsel appearing for the Crown on a review should do no more than read the relevant parts of the record. Nor did the Full Court think that he had any right of reply.

17. Accepting that it is incumbent upon counsel for the Crown, at the conclusion of a trial, to exercise great restraint in the matter of sentence and not to suggest what an appropriate punishment might be, we do not think that this same restriction applies in an application for review. By its very nature, counsel for the Crown must be seeking to persuade this court that the sentence imposed was manifestly inadequate or wrong in principle.

18. We do not see how he can do this effectively unless he is permitted to argue the principles of sentencing which he thinks should apply, to draw the court's attention to the facts which militate for a heavier or different sentence, to seek, by argument, to persuade us that the lower court was wrong and to draw our attention to sentences imposed in similar cases.

19. Furthermore, we see no reason why he should be limited to one speech, which does not accord with general practice, whereby the party making an application has a right of reply at the conclusion of the respondent's submissions.

20. We therefore consider that those parts of the Full Court judgment of 1972 which suggest that the Attorney General should be limited in these ways should no longer be followed.

21. However, we must make it clear that we shall continue to follow the practice, which has been well established by this court, that, if we decide that a sentence was manifestly inadequate or wrong in principle, we will pass upon the respondent a lesser sentence than we consider proper for the offence of which he has been convicted, to take account of the fact that he has been placed in double peril by the application for review.

Issues to be decided

22. The issue before us was whether the sentences imposed by the magistrate for offences against section 17C(3) of the Immigration Ordinance were correct in principle and amount.

23. There has been much publicity about the course taken by the magistrate. We therefore think it desirable to state that we are dealing only here with the proper sentence for such offences.

24. It is not part of our task, in an application for review, to express any opinion as to the circumstances in which an offence against section 17C(3) is or is not committed. The proper way of testing the law in this regard is by way of case stated to a judge of the High Court.

25. Nor are we called upon to say whether we think that this legislation has been enforced in a reasonable or unreasonable manner nor as to whether or not the police should exercise more discretion in exercising the powers conferred by it.

26. Nor is it part of our task to comment on the extent of the powers available to the police when enforcing this section, though it seems to us to follow necessarily from the obligation imposed by section 17C(2) on a person to produce proof of his identity on demand for inspection by a police officer, that the latter has power to stop any member of the public and to demand the production of such proof.

Reasons for sentence given by the magistrate

27. The magistrate gave the same reasons for the sentence which he imposed on all five respondents; and stated that these would have applied to all the offences against section 17C(3) with which he had dealt since April 1981.

28. The magistrate took the stance that, in the absence of aggravating or mitigating factors, the same penalty should be imposed on all offenders. We see nothing wrong with this as a general approach, provided that the standard penalty is an appropriate one.

29. The magistrate added that any repetition of the offence would bring a fine. Again, we have no criticism of his view that a heavier penalty should be imposed for a second offence against section 17C(3) than for a first such offence.

Assumptions by magistrate

30. The magistrate explained that he had decided to impose an absolute discharge in every case, so long as the defendant was of good character, his refusal to produce proof was not wilful and he had no criminal intent. These conditions appear to have been satisfied in every case which came before him.

31. We agree that this is not an offence which contains any element of moral stigma and that its commission will usually be due to inadvertence or carelessness. Only rarely will a defendant admit that he left his identity card behind him on purpose, or that, since he objected in principle to the legislation, he did not propose to follow it. If such evidence did emerge, it would be an aggravating factor, which would justify the magistrate in imposing a fine above the usual range.

32. However, while there may be no element of moral blame involved, if the Legislature provides that failure to produce proof of identity shall constitute an offence, any person who goes out without his card must realize that he is doing something which will involve a breach of the obligation imposed upon him by law to have it with him; and that, if he is asked to produce it by a police officer, or by one of the other persons who is qualified to demand its production by virtue of section 17C(2) of the Immigration Ordinance, he will have committed an offence.

33. The offence is complete where there is a failure to produce proof of identity on demand, irrespective of the defendant's mental attitude at the time. If, by his reference to a wilful refusal to produce, the magistrate is dealing with the possibility that someone has the means of identity in his possession but refuses to produce it, we agree that this would be an aggravating factor.

Reasons for leniency

34. The magistrate gave as his reasons for a general leniency, apart from the assumptions considered above, that the offender had suffered inconvenience, by virtue of his arrest and his appearance in court, and that the offence itself was of a trivial nature.

35. It is unavoidable that a person who fails to produce proof of his identity on demand should be arrested and held in police custody until he has established his identity. There is no other way of enforcing the legislation effectively.

36. We do not see that this inconvenience, or that which is suffered by any other defendant who attends a court in answer to a charge, is a valid reason for the reduction of what would otherwise be the appropriate sentence.

Triviality of the offence

37. This leaves for consideration what we conceive to be the principal reason for the stance adopted by the magistrate, namely his view that the offence must be of a trivial nature, because the maximum fine is $1,000 with no imprisonment.

38. The Attorney General submitted that the maximum penalty is only one factor which should be taken into account, when deciding whether an offence is so trivial that, as a matter of course, no monetary penalty should be imposed for it. A court, he argued, should also give full account to the social evil at which legislation was aimed when determining an appropriate level of sentence.

39. In passing, we note that we admitted an affidavit sworn by Superintendent Clemence, containing statistics of the numbers of illegal immigrants since the beginning of 1979. Between January 1979 and the end of October, 1980, the monthly average of illegal immigrants intercepted was about 7,600, with an estimate that a further 8,000 per month evaded capture and entered Hong Kong.

40. Since the enactment of the legislation, which requires all persons over the age of 15 to have with them proof of identity and to produce it on demand, a monthly average of about 945 illegal immigrants has been arrested in identity checks in the streets and at places of work.

41. We think it is helpful to the Court of Appeal, on an application for review, to receive relevant statistics, for example those which show the prevalence of an offence.

42. The Superintendent's affidavit was of some assistance as showing the extent of illegal immigration and how far it has fallen since the enactment of this legislation.

43. As a matter of common-sense, it is reasonable to conclude that the significant drop in the numbers of illegal immigrants could be attributed in part to the enactment of this legislation, which must have warned a prospective illegal immigrant that his chance of remaining here undetected had been greatly reduced by the need to carry proof of identity, that he could not get a job without it, and that in consequence, the likelihood of him being caught and returned to China was much higher.

44. Such legislation can, of course, be effective only if the police have power to ask members of the public to produce their cards and if the public co-operates by carrying them. Such co-operation would be gravely weakened if the citizen thought that he could with impunity avoid the obligation imposed upon him by law to carry evidence of identity, secure in the knowledge that, if he appeared in front of a court, no penalty, other than that of absolute discharge with the recording of a conviction, would be imposed upon him, at least on the first occasion on which he was caught.

45. While the position may very well have improved during the past year, there is no reason to suppose that the danger of illegal immigration has passed and that therefore the courts can safely act as if the measures designed to discourage it need no longer be enforced.

46. Although the magistrate did not have before him these statistics with which we were supplied, he must be deemed to have been aware of the reasons for imposing an obligation on all residents of Hong Kong to carry documents of identity, because a magistrate is not, and must not be, out of touch with contemporary social and community issues and problems.

47. It does not seem to us that, with this background, it can be correct to regard the offence as so trivial as not to attract any penalty.

Conclusion

48. Many offences contain little or no element of moral blame. They have been created by the Legislature because the latter, to which falls the duty of making laws, considers it necessary to impose some restraint or duty upon members of the public for the common good.

49. The task of a court is to take proper steps to enforce that restraint or duty, due account being taken of the interests of the individual offender and of the circumstances in which the infringement occurred by the imposition of an appropriate penalty in each case. It is not right for a court to adopt a course which is explicable only on the basis that it does not regard the law as worthy of enforcement.

50. For these reasons, we were satisfied that the sentences imposed were wrong in principle and manifestly inadequate.

Representation:

J.C. Griffiths, Q.C., M. Lucas, Q.C., C.G. Jackson, Senior Crown Counsel for Applicant.

P. Yu (D.L.A.) for CHAN Wai Lan & LO Siu Kong. Other respondents in person.

(1) (1972) H.K.L.R. 324.

(2) (1972) H.K.L.R. 370 at pp.410, 411.

(2) (1972) H.K.L.R. 370.