The Queen v. Yan Lap Man

HCMA001231/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1231 of 1988

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BETWEEN

Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 29th November, 1988

Date of Delivery of Judgment: 29th November, 1988

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J U D G M E N T

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1. The Appellant pleaded guilty to a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully, an offence contrary to s. 38(1)(b) of the Immigration Ordinance.

2. He is 27 years of age and was questioned by the police during the course of "an anti-illegal immigration operation" outside the canteen on a construction site in Junk Bay. During the questioning he was asked to produce an identity document but he was unable to do so. Subsequent enquiries revealed that he had landed here unlawfully from China on "a dace which is uncertain".

3. He had a clear record and it appears that this was his first unlawful visit to Hong Kong. The Magistrate following the guidelines laid down in So Man king sentenced him to imprisonment for 15 months. He now appeals against that sentence.

4. His Counsel, Mr. Louis Tong, who appears for him today submits that the sentence is wrong in principle or manifestly excessive in that the learned magistrate failed to give sufficient consideration to the fact that the Appellant was apparently prosecuted as a result of "an unannounced change of government policy". The gist of Mr. Tong's submission is that heretofore the announced policy of the Immigration Department was chat an illegal immigrant found on a construction site would not be prosecuted by that department unless he happened to be working in a group of illegal immigrants numbering more than three.

5. Mr. Wilson for the Respondent has informed me that there has been no change of government policy, in that it has always been the practice of the police to prosecute an illegal immigrant found on a construction site whether in the company of other illegal immigrants or not. But he also informed me that it is still the policy of the Immigration Department not to prosecute an illegal immigrant found on a construction site if that immigrant is working there in a group of three or less illegal immigrants.

6. The Appellant, therefore, found himself in the position that if his offence had been detected by a party of immigration officers carrying out "an anti-illegal immigration operation" he would not have been prosecuted. He found himself being prosecuted for this offence because it happened to be a party of police officers carrying out the operation. As recently as the 14th of November 1988, Mr. Justice Bewley in. The Queen v. Lee Yan Vi, (Magistracy Appeal 1058 of 88) had before him a case where an illegal immigrant was found on a construction site in the company of another illegal immigrant and was arrested and prosecuted. Referring to what was said by the Court of Appeal in So Man-king about the government policy in respect of prosecuting illegal immigrants and having been informed that there had been no further refinement of government policy as regards illegal immigrants found on construction sites, he went on to say this: "although they are in clear breach of the Ordinance, they may consider themselves unfortunate. to be imprisoned rather than back in China." For that reason he allowed the appeal and reduced the sentence of 15 months imprisonment which was imposed in that case in a purported following of the guidelines of So Man-king,

7. I am also informed by Counsel that Mr. Justice Wong in a recent decision which has not been reported, allowed an appeal against sentence for somewhat similar reasons. It does seem to me to be odd that the Royal Hong Kong Police Force is and has been following policy with regard to prosecution of illegal immigrants in conflict with the policy adopted by the Immigration Department. What is also odd is that this policy adopted by the police force has long been in operation and was in fact in operation when the Appellants in So Man-King's case were arrested. I note from reading that judgment that the arrests in that case were made by the police force. In So Man-king, the Court of Appeal pointed out that it was a mitigating factor, in cases such as this, if an offender had been led to believe that if his offence were detected he would be dealt with not by way of prosecution but by way of repatriation.

8. If this Appellant read the report of the decision So Man-king, he would have been comforted by the thought that although he was committing an offence, if he was detected by the Immigration Department, he would not be prosecuted but repatriated to China.

9. I think, therefore, notwithstanding that it has been the policy of the police force to prosecute that there is a mitigating factor in his case and that the guideline of 15 months imprisonment was not appropriate. I, therefore, allow the appeal, quash the sentence and substitute therefor a sentence of imprisonment for 6 months.

Representation:

Mr. Wilson, CC for Crown

Mr. Louis Tong (DLA) for Appellant