The Queen v. Cheung Chin Yee

HCMA000986/1990

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 986 OF 1990

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 3 April, 1991

Date of Delivery of Judgment: 3 April 1991

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JUDGMENT

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1. The appellant, Cheung Chin Yee, appeals against a sentence of imprisonment for 15 months imposed after he pleaded guilty to a charge of possession of a forged travel document, contrary to a provision of the immigration Ordinance.

2. The appellant was stopped on 9th June 1990 by a Police Officer in the Central district, and being asked for proof of his identity, he produced a document which the Police officer suspected to be forged. As a result he took the appellant into custody and the case was referred to the Immigration Department for further investigation.

3. As a result of that investigation, the defendant under caution told the Investigating Officer that he obtained the document unlawfully in China. He was charged on 19th June and appeared before the magistrate, pleaded and was sentenced on 20th June 1990.

4. In support of his appeal against sentence today he relies on 2 main grounds: (1) a humanitarian ground; and (2) the decision of the court of appeal in the Queen v.Cheung Mei Yik (1990) C.A. 442.

5. As regards the humanitarian ground, I see no substance in it whatsoever in that it is a plea available to practically all legal immigrants who are found here in possession of forged travel documents.

6. In relation to the second ground, the Court of Appeal said in Cheung's case that, as S.67(a) of the Criminal Procedure Ordinance does not allow the period spent in custody between the time of arrest and the time of first appearance in court to be taken into account as part of the sentence, the prosecutor should bring to the attention of the sentencing Magistrate the fact that the defendant has been in custody for whatever the particular period may have been. The sentencing Magistrate can then take that period into account to reduce what otherwise would be the appropriate prison term. It is understandable that that was not done in this case, because the appellant was sentenced on 20th June whereas that Court of Appeal Decision was not handed own until 25th January 1991,

7. In order to make that period count as part of his sentence, I allow the appeal, quash the sentence and substitute therefor a sentence which enables the Appellant's release forthwith.

Representation:

Mr. S. Bailey, C.C. for Crown

Mr. Philip Wong (D.L.A.) for Appellant