Ko Tai Hei v. The Queen
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CACC000214/1980
Coram: Zimmern, J. Date of Judgment: 17 March 1980 ----------------- JUDGMENT ----------------- 1. This is an appeal against sentence. The facts of the case are that the appellant and his father with other members of the family operated a coastal fishing junk. In the junk he went to Macau where he met an illegal immigrant there and the appellant was affianced to her. They returned to Hong Kong together and a couple of days after arriving she applied to the Authorities for an identity card. She was told to return a fortnight later and upon return the appellant and his father were arrested and charged with aiding and abetting an illegal immigrant to land in Hong Kong contrary to section 38(1)(a) of the Immigration Ordinance. They both pleaded guilty before the learned magistrate and the father was sentenced to six months' imprisonment and from that sentence there is no appeal before me. The learned magistrate remanded the appellant in custody for probation report and a detention centre report. On return date the appellant was represented by counsel and he argued that both reports were in the appellant's favour and that this was not a case for immediate custodial sentence. He was sentenced to be detained in a detention centre. The learned magistrate felt that he was bound by the judgment of the Chief Justice in Criminal Appeal 1979 No. 651 where the appellant was given a twelve months' imprisonment in the case of aiding and abetting where there was no evidence of money changing hands and that he considered that the present case was more serious in that the appellant actually brought the illegal immigrant into the Colony and not merely assisted her after her arrival. That the appellant deserves punishment of that I have no doubt but a sentence to a detention centre is a form of corrective punishment and from the reports of the probation officer and the detention centre officer it is clear that the appellant did not require any corrective training whatsoever. He was described as being stoical, indefatigable and honest, righteous. He was not fit for probation simply because he did not require a probation service. 2. The facts of this case are exceptional. One important point which Mr. Bleach submitted and which was not put before the learned magistrate was that if the appellant had married the girl in Macau rather than waited for the marriage to take place in Hong Kong he would have had every right to bring her in. I am told she has been allowed to stay in Hong Kong. 3. In the circumstances of this case I allow the appeal, set the sentence of the detention centre aside and substitute therefor a sentence of six months' imprisonment suspended for one year and I have explained to the appellant the consequences of this sentence. Representation: J. Bleach (Philip Remedios & Co.) for Appellant T. Gall for Respondent |