The Queen v. Chan Wah-ying

CACC000294/1983

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 294 of 1983

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BETWEEN

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Coram: Macdougall J. in Court

Date: 7th April 1983

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JUDGMENT

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1. The appellant was convicted on her own plea of an offence against section 38(1)(b) of the Immigration Ordinance in that having landed in Hong Kong unlawfully she remained without the authority of the Director of Immigration.

2. The agreed facts before the Magistrate were that she had first arrived illegally in Hong Kong from China in August 1981, had been arrested by the police on 19th October the same year and repatriated. She again entered Hong Kong illegally by speed boat on 2nd January 1982 having paid 300 yuan to those who conveyed her here. A year later, on 7th January 1983, she was arrested in connexion with the latter offence.

3. In his statement of findings the Magistrate referred to CHAN Shau-kin and others v. The Queen, Criminal Appeals 934, 967, 976 and 977 of 1981 in which the Court of Appeal indicated that a sentence of 15 months imprisonment is appropriate where a person is found guilty of being in possession of a forged identity card contrary to section 7A of the Registration of Persons Ordinance. The Magistrate took the view that a person who, having once entered Hong Kong illegally and been removed, returns illegally "deserves punishment of similar severity".

4. No doubt he was influenced by the observation made by Sir Alan Huggins V.P. in his judgment in Chan's case that once it becomes apparent that the obtaining of forged identity papers will be severely punished, the effect will inevitably be to make people think again before entering Hong Kong illegally. It is plain from the tenor of the judgment that the object of imposing a severe sentence is to deter would be illegal immigrants.

5. Notwithstanding his view as to the appropriate general level b of sentence for offences against section 38(1)( b) committed in circumstances such as those in the case before him, the Magistrate decided to extend leniency to the appellant on account of the fact that she was "only 20 years of age". It is against that sentence that she now appeals.

6. Miss Alice Woo who represented the appellant submits that the sentence was manifestly excessive and that the Magistrate was wrong in comparing the gravity of the appellant's conduct with that of a person who is found in possession of a forged identity card. She further urged in favour of the appellant that she had been gainfully employed since her second illegal entry into Hong Kong and had otherwise been a law abiding citizen.

7. Section 38(1) was enacted in 1972. It provides that an offender shall be liable to a fine of $5,000 and to imprisonment for 3 years.

8. Section 7A of the Registration of Persons Ordinance was enacted in 1981 in order to more effectively cope with the problem of illegal immigration. It provides for a maximum penalty, on conviction on indictment, of a fine of $50,000 and imprisonment for 7 years, and on summary conviction, for a penalty of a fine of $20,000 and imprisonment for 2 years. The higher scale of penalties for an offence against section 7A is in part due to the fact that the] section is directed not only at the illegal immigrant who is found in possession of a forged identity card but at the person who possesses such a card for the use of another person. No doubt the legislature contemplated cases where a person, not being an illegal immigrant, has in his possession a number of forged identity cards with the objects of supplying them to illegal immigrants at considerable financial profit.   Offences against section 7A therefore encombass a range of criminality that is wider than that envisaged by section 38(1). Although the scope of each section may differ, both were designed to deal with the problem of illegal immigration into Hong Kong.

9. I am informed by Mr. Frank Wong who appeared for the Crown that the present policy is not to prosecute illegal immigrants from China for their first offence against section 38(1). They are prosecuted only if they return illegally to Hong Kong after having previously entered illegally and been repatriated.

10. Mr. Wong also informed the court that in 1982 over 30,000 illegal immigrants, who had previously illegally entered Hong Kong and been repatriated, were arresdted. In each month of the same year an average of 123 persons entered Hong Kong illegally from China for the fourth time.

11. In the light of all these factors I do not consider that a sentence of fifteen months imprisonment is either manifestly excessive or wrong in principle. I have already observed that the appellant received a discount of three months on account of her age. In my view the Magistrate was unduly lenient in allowing that factor to affect him. It is well known that young persons form a high percentage of those immigrants who arrive in Hong Kong illegally from China.

12. At the request of the Crown the appeals of four other appellants who had been convicted o?the same offences as the appellant were heard at the same time (Criminal Appeals 295, 296, 346 and 348 of 1983). This procedure enabled them to have the benefit of such generalised argument as was advanced by Miss Woo on behalf of her client. Each appellant also addressed me on his or her own behalf but was unable to advance any reason for reduction of sentence other than that he or she wished to return to China as soon as possible in order to support relatives living there.

13. In this connexion it is pertinent to refer to what Sir Alan Huggins V.P. said in the appeal previously cited:

14. One appellant complained that although., apart from Miss Woo's client, each of his co-appellants had received a sentence of fifteen months imprisonment, he had been sentenced to sixteen months imprisonment. He, however, had been convicted in June 1982 of having been in possession of a forged identity card and had been sentenced to six months imprisonment. Notwithstanding that sentence he saw fit to return illegally to Hong Kong after his discharge from prison and repatriation to China. The Magistrate quite rightly punished him more severely than the others.

15. All appeals were therefore dismissed.

Representation:

Miss Alice Woo of Liu, Chan & Lam for Appellant

Mr. Frank Wong, Senior Assistant Crown Prosecutor, for Crown/Respondent