HKSAR v. Hon Kei Fung

HCMA000065/2000

HCMA65/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.65 OF 2000

(ON APPEAL FROM SKCC 3533 OF 1999)

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Coram: Hon Gall J in Court

Dates of hearing: 28 March 2000

Date of judgment: 28 March 2000

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J U D G M E N T

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1. The appellant was convicted on 23 December 1999 of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong and was sentenced to 21 months' imprisonment. He now appeals that sentence.

2. The facts were that about 5:00 o'clock on 20 December 1999, he was stopped at a stop and search. Enquiries revealed that he was an illegal immigrant. At court, the appellant admitted the charge and entered the plea of guilty. He was found to have three previous convictions for the same offence, together with one conviction for theft and another for assault occasioning actual bodily harm. His criminal record started in September 1996.

3. The magistrate in his Reasons for Sentence said this :

"In sentencing the Appellant I bore in mind his early plea of guilty. I also bore in mind that the substantial terms of imprisonment previously imposed on him had not prevented him making multiple unlawful entries into Hong Kong. I decided that as this was his fourth unlawfully entry that a sentence of twenty-one months imprisonment was appropriate after deduction for his plea of guilty."

4. Mr Wong, for the appellant, argues that the sentence is manifestly excessive in that the magistrate has placed undue emphasis upon the previous record of the appellant. He points me to R. v. So Man-king and Others [1989] 1 HKLR 142. In that case, it was held that a sentence of 18 months' imprisonment was an appropriate sentence in respect of a person who was a third time offender in respect of the same offence as which the appellant faced in this case. Mr Wong concedes that an appropriate sentence would be 18 months' imprisonment and argues that the fact that this sentence is three months in excess of that period makes it manifestly excessive.

5. Miss Wong, in her address, referred me to R. v. Chan Wun Sang, HCMA Nos.6 & 52 of 1992. In that case, the Court of Appeal considered whether it was proper sentencing practice in all the circumstances relating to persons charged with the offence which the appellant faced in this matter, that the fact that previous unlawfully entries had been made by an appellant into Hong Kong justified an increase in the sentence. There, the court held that it was proper sentencing practice that a defendant who has been guilty of similar conduct previously should have it taken into consideration in the length of the sentence, and found specifically in answer to the question posed that, in the circumstances of this type of offence, it was relevant to take into account those previous entries into Hong Kong.

6. Mr Wong argues that the entry on this occasion differed from that on previous occasions. He argued on the three previous occasions, the appellant entered to make money for himself, whilst on this last occasion, his mother was ill from some intestinal problem and that he had a debt of RMB20,000. On this occasion, although he entered to make money, Mr Wong concedes he entered to do so for a better reason, that is to pay the medical expenses for his mother.

7. I do not have before me any medical reports nor any evidence or indication as to what the sum of RMB20,000 was for. I therefore consider, in the light of So Man-king and Chan Wun Sang and the circumstances of this case generally, whether the sentence of 21 months' imprisonment when compared to that of 18 months' imprisonment is manifestly excessive. I do not find that to be so. This appeal is dismissed.

Representation:

Miss Lily Wong, GC, for HKSAR

Mr Richard Wong, instructed by DLA, for the Appellant