HKSAR v. Law Kin Ping

HCMA000839/1999

HCMA839/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.839 OF 1999

(ON APPEAL FROM SKCC 2004 OF 1999)

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Coram: Hon Nguyen J in Court

Dates of Hearing: 16 & 23 December 1999

Date of Judgment: 23 December 1999

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J U D G M E N T

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1. The Appellant was convicted of four charges on his own plea : (1) theft; (2) possession of an identity card relating to another person; (3) using an identity card relating to another person; and (4) remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He pleaded guilty before Mr Allan Wyeth on 19 July 1999. On the 1st charge he was sentenced to eight months' imprisonment; on the 2nd and 3rd charges to six months each; and on the 4th charge to 15 months. The two six-month sentences were ordered to be served concurrently with the 15 months. Of the eight-month sentence for the theft, five months were ordered to be served concurrently and three months consecutively to the 15-month sentence, making a total of 18 months' imprisonment.

2. Despite his plea of guilty to the 4th charge, he lodged an appeal against conviction under s.113 of the Magistrates Ordinance. The basis of his appeal was that he had not understood that one of the ingredients of the 4th charge was that he had to have entered Hong Kong unlawfully. He filed an affidavit in support of this submission in which he stated that he had come to Hong Kong from Macau on 22 April 1999 on his Portuguese Aliens Passport issued by the Macau Government. He was given permission to remain in Hong Kong until 29 April 1999. He said in his affidavit that during the interview with his Counsel, assigned by the Duty Lawyer Scheme, he was told that one of the offences that he was charged with was illegally remaining in Hong Kong. He said that at the time he genuinely believed that because he had overstayed his permission to remain in Hong Kong, he had committed the offence of illegally remaining in Hong Kong. He said he was not aware that an unlawful entry into Hong Kong was an essential element of the 4th charge.

3. Today in court, upon my invitation, he gave evidence before me because I was interested to know why he had admitted the facts presented in the Magistrate Court if the facts were not true. In his evidence before me he said that his Counsel had said to him that he, the Counsel, did not really see any defence to the charges, and that even if he were to contest the charges, chances were he would be convicted. Also, on the other hand, if he would plead guilty, he would get a much less severe sentence. He said that because of that advice, he told his Counsel that he would plead guilty to the charges. When he appeared in court, he did plead guilty to the charges and admitted the facts as they were read out to him.

4. The fact in this case, as they were presented in the summary of facts, concentrated on the circumstances under which the Appellant was arrested and the circumstances under which he had committed the theft of another person's mobile telephone. They did not really deal with the 4th charge save to the extent that when the Appellant was searched, a Hong Kong identity card was found in his possession. Under caution, he admitted to the police officer that he had bought the said identity card for RMB300 in China and that he had sneaked into Hong Kong by hiding himself under a train about 10 days ago; also that he had used the identity card to apply for a methadone treatment card. So his admission to the police officer covered the 3rd and 4th charges, and his possession of the identity card was relied upon to substantiate the 2nd charge.

5. He told me in court today that at the time of his arrest he had been a drug dependent for about five years. On the day of his arrest, he was suffering from withdrawal symptoms and hence at the police station he just signed what he was asked to sign because he was anxious that the police should take him to receive some methadone. He said he did not really pay much attention to what was read out to him in court.

6. I am satisfied, on the strength of the production of the Macau passport and his Macau identity card, that these were genuine documents issued to the Appellant by the Macau government. I am satisfied that these documents relate to the Appellant; the two photographs in the two documents clearly have a very strong resemblance to the Appellant's appearance. I am therefore satisfied that he had entered into Hong Kong legally on 22 April 1999 and was permitted to remain in Hong Kong for seven days. I am satisfied that he thereafter overstayed or breached his condition of stay. Mr Recorder Ching Y Wong in HKSAR v. Hui Chun-man, HCMA1229/98, held that if an unequivocal plea of guilty was tendered under a mistake or misunderstanding of the law, that plea would in law constitute a nullity.

7. In the present appeal, I am satisfied that the Appellant was not aware that one of ingredients of the 4th charge to which he pleaded guilty was that he must have landed in Hong Kong unlawfully. On my findings of facts that he had entered Hong Kong on a Macau passport and was permitted to remain in Hong Kong for a week, it is quite clear that he had not landed in Hong Kong unlawfully. I therefore find that his plea of guilty to the 4th charge was a nullity. Despite his plea of guilty, I find that I do have jurisdiction under s.113 of the Magistrates Ordinance to entertain his appeal. The appeal will therefore be allowed, the conviction on the 4th charge is quashed. In substitution therefor, I convict the Appellant of an offence under s.41 of the Immigration Ordinance, namely, that he had breached his condition of stay. So the Appellant is convicted of that substituted charge. On that charge, I sentence the Appellant to one month's imprisonment, suspended for six months. The sentence which I impose for the substituted conviction under s.41 is one month's imprisonment. The three months on the 1st charge which were made consecutive to the 4th charge will now be consecutive to the sentence in the 2nd charge. The five months in the 1st charge which were made concurrent to the 4th charge will now be concurrent to the sentence in the 2nd charge. The sentences on the 2nd, 3rd and 4th charges will be served concurrently. So the total sentence is nine months' imprisonment.

Representation:

Mr David Chan, SGC of the Department of Justice, for HKSAR (on 16 December 1999)

Mr Albert Wong, SGC of the Department of Justice, for HKSAR (on 23 December 1999)

Mr Wilson Chan, instructed by Legal Aid Department, for the Appellant