HKSAR v. Yung Ting Chun

HCMA001044/2001

HCMA 1044/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1044 OF 2001

(ON APPEAL FROM FLCC 1764/2001)

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Coram: Deputy High Court Judge Gill in Court

Date of Hearing: 4 December 2001

Date of Judgment: 4 December 2001

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J U D G M E N T

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1.On 29 August 2001, the appellant, a male aged 26 years, pleaded guilty before Miss E Loh, magistrate, of the offence of remain in Hong Kong without authority having landed here unlawfully. The summary of facts reveals the all too familiar account of the Mainlander coming into Hong Kong by means of hiding in the chassis of a trailer that had made the journey from Shenzhen. The appellant was seen to crawl from the trailer and catch a taxi but he was later apprehended and admitted to the illegal entry.

2.It was then established by way of fingerprint comparisons that he had come to Hong Kong once before in 1998 when he was then convicted of a firearm offence and sentenced to imprisonment.

3.The magistrate on his guilty plea imposed the sentence of 17 months' imprisonment. In her Reasons for Sentence she said that she had paid heed to the hallmark case of the R v. So Man King & others [1989] 1 HKLR 142, in which the Court of Appeal stated that a sentence of 15 months' imprisonment was the appropriate sentence after the inevitable plea of guilty, but that the sentencing court should take into account by upward adjustment any previous unlawful entry whether that was prosecuted or not.

4.In her Reasons she said:-

"I took as a starting point 15 months for his plea of guilty and following So Man King to upwardly adjust his sentence to reflect his previous entry. I increase that to 17 months."

5.It is apparent that she drew the assumption that the appellant being an illegal immigrant on this occasion had committed the previous offence also as an illegal immigrant. But that assumption was wrong.

6.Mr Pierce representing the appellant at this appeal had sought leave at the outset to adduce evidence in the shape of affidavits from both the appellant and from a legal aid counsel, the latter exhibiting a memorandum from the police which was to the effect that the appellant on the previous occasion was in fact a lawful visitor to Hong Kong. That application was not opposed by Mr Madigan representing the Director of Public Prosecutions and nor does he resist this appeal against sentence. I granted leave for the new evidence to be adduced and I accept from it as unassailable that the appellant was not in Hong Kong unlawfully on the previous occasion and that this time is the first reported occasion when he has come to Hong Kong unlawfully.

7.The magistrate was in error when she enhanced the usual guideline sentence and that resulted in a sentence which was wrong in principle.

8.Accordingly, the appeal is allowed and the sentence imposed at first instance of 17 months replaced by one of 15 months' imprisonment.

Representation:

Mr P K Madigan, SGC, for the Director of Public Prosecutions

Mr R Pierce assigned by Director of Legal Aid, for the Appellant