HKSAR v. Wong Cheung Lung

HCMA000225/2002

HCMA225/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.225 OF 2002

(ON APPEAL FROM TMCC 2047 OF 2001)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 8 May 2002

Date of Judgment: 8 May 2002

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J U D G M E N T

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1.This is an appeal against sentence only.

2.The appellant pleaded guilty before a magistrate to an offence of unlawfully remaining in Hong Kong contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115. He was sentenced by the magistrate to a period of 15 months' imprisonment.

3.The appellant had previously been convicted and sentenced for an offence of robbery. That sentence had been imposed on 18 January 2002 in the Court of First Instance. In respect of that robbery he was sentenced to imprisonment for four years and four months. The magistrate when he imposed sentence in respect of the present offence was aware of the existing robbery sentence the appellant was currently serving. He ordered the 15 months' sentence in respect of the immigration offence to be served consecutively to the sentence imposed previously in respect of the robbery offence.

4.The appellant before me advances one simple ground of appeal. He takes no issue with the 15 months' imprisonment imposed in respect of the immigration offence by the magistrate, but complains that it should have been made at least partially concurrent to the sentence imposed upon him in respect of the robbery offence. In HKSAR v. Tong Fuk Sing [1999] 3 HKC 332, the Court of Appeal said that in respect of an offence of unlawfully remaining in Hong Kong a sentence would in the usual course have been imposed consecutively to any sentence imposed in respect of an offence committed by the unlawful stayer whilst he was in Hong Kong unless there were strong humanitarian reasons or some other compelling circumstance which would justify an order that the sentences be served either concurrently or at least partially concurrently.

5.In the present case, the appellant advances as such reasons only the fact that he is an 18 year-old orphan and that the occasion of the present offence was the first time he came unlawfully to Hong Kong. In my view, neither of those facts amount to compelling circumstances or strong humanitarian reasons why the sentences should be imposed so as to be served concurrently. In that regard, the magistrate's sentence, and order in respect of that sentence, cannot be criticized. The appeal against sentence is dismissed.

Representation:

Mr Chiu Wai Tin, GC, of the Department of Justice, for the Respondent/HKSAR

Appellant in person