The Queen V Chan Choi-kwok and Another
Read the full judgment text of HCMA 1561/1988 on BabelCite. This High Court CFI judgment was delivered on 2 February 1989.
1. The appellants pleaded guilty before a magistrate to the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully contrary to section 38 (1) (b) of the Immigration Ordinance. Chan Choi-kwok, who is aged 59, was sentenced to 15 months imprisonment and Chan Chin who is 63 years old was sentenced to 12 months imprisonment.
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HCMA001561/1988 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) MAGISTRACY CRIMINAL APPEAL No. 1560 &1561 OF 1988 -------------------------- BETWEEN
------------------- Coram: The Hon, Mr. Justice Wong in Court: Date of Hearing: 2 February 1989 Date of Delivery of Judgment: 2 February 1989 ------------------------ J U D G M E N T ------------------------ 1. The appellants pleaded guilty before a magistrate to the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully contrary to section 38 (1) (b) of the Immigration Ordinance. Chan Choi-kwok, who is aged 59, was sentenced to 15 months imprisonment and Chan Chin who is 63 years old was sentenced to 12 months imprisonment. 2. In assessing sentence, the magistrate took into consideration the decision in The Queen v So Man-king, the age of the appellants, their pleas of guilty and that they were arrested within hours of their arrival in Hong Kong. 3. The only ground of appeal is that the magistrate failed to take into consideration that the appellants were prosecuted in exception to the present policy of prosecuting illegal immigrant's from China. 4. Mr. Sham for the Crown informed me that the policy of the Government to prosecute illegal immigrants from China remained the same as stated in The Queen v So Man-king, Magistracy Appeal No. 408 of 1988 and that is to prosecute anyone who was found on a construction site or other place of employment in a group of three or more or anyone who had come before, that is those who had successfully entered Hong Kong on at least one other occasion, had been repatriated and yet managed to find their way here again. They would be prosecuted whether they had committed any other offence or not. 5. Mr. Sham conceded that the appellants were not within either one of the two categories of persons mentioned above. In the words of Bewley J, the appellants were clearly in breach of the ordinance, but they were unfortunate to be in prison rather than having been repatriated back to China immediately after their arrest 6. In line with the decision of Bewley J in The Queen v Lee Yan-bi and Wong Wai-hing, Magistracy Appeal Nos. 1058 and 1062 of 1988 and the decision of Barnes J in The Queen v Yan Lap-man, Magistracy Appeal No. 1231 of 1988, I would allow the appeal and reduce the sentence in each case to one of six months imprisonment. The reduction is in accordance and in no way conflicts with the judgment in The Queen v. So Man-king.
Representation: Mr. Alain Sham, Crown Counsel for the Crown. Mr. Louis Tong, assigned by D.L.A. for the appellant. |