The Queen v. Ng Chow Shing

HCMA000631/1990

M.A. No. 631/90

Headnote

Magistracy Appeal - Plea of Guilty - Reversal of Plea - Aiding and abetting illegal immigrants - undesirable sentencing practice on inadequate material.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAGISTRACY APPEAL NO. 631 OF 1990

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BETWEEN

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Coram: The Hon. Mr. Justice Sears in Court

Date of Hearing: 16 May 1990

Date of delivery of Judgment: 16 May 1990

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JUDGMENT

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1. This Appellant pleaded guilty to aiding and abetting illegal immigrants to remain in Hong Kong before L.D'Almada Remedios, Esq. at South Kowloon Magistrate's Court, and was sentenced to 15 months imprisonment. He later wished to withdraw his plea - this was refused but the sentence was reduced to 12 months.

2. This case has highlighted a most undesirable practice which should concern these involved in administering a fair system of justice.

3. The Appellant, aged 42, was a waiter in a restaurant, owned by a 77 year old man, who had brought him up for the past 30 years - he was of good character and had been a hard working and loyal servant. He was paid $4,500 per month. There were 15 employees at the restaurant and the cashier was responsible for settling the bills and paying the wages.   Police officers found two illegal immigrants at the back of the restaurant peeling gingers.

4. When the Appellant, who was unrespresented, appeared at Court there was handed up a piece of paper which read :-

5. The Appellant, according to the record said: "I admit the facts. I have nothing to say. I ask for leniency."

6. The Magistrate then sentenced him to 15 months imprisonment. No questions were asked of him or of the prosecution. How long had the illegal immigrants been employed? How did they get there? Did the Defendant really aid and abet them and how did he do it? Was it he who employed them, or was it the proprietor, or the cashier who paid them? What about the Appellant's previous life and record?

7. Although guidelines are for a court's guidance, a court must enquire into the person who is before it. The few typewritten lines handed to the magistrate was most inappropriate. The magistrate should have been on his guard when asked to sentence this man. I do not consider that justice was seen to be done here. The process of disposing of this case, which must have lasted all of two minutes, was seriously flawed.

8. I trust that in future citizens of Hong Kong will never be sentenced to imprisonment in this arbitrary manner which has all the appearance of 'rubber stamp' justice.

9. The Appellant was later permitted to file an affirmation stating his reasons for an application to reverse his plea. The magistrate did not cause any inquiry to be held -he summarily dismissed the application. No cross-examination of the Appellant took place - no witness was called in rebuttal.

10. The affirmation clearly stated that the Appellant was induced by the police to plead guilty and that he did this to save inconvenience to the elderly proprietor to whom he obviously owed great loyalty.

11. I fail to understand now the magistrate could have refused the application. There was clear 'prima facie' evidence of inducement - further the facts show a lamentable attitude of the police in the treatment of the Appellant, which is born out by the arbitrary and shoddy manner they presented the prosecution.

12. In order to discover the facts, an inquiry must be held - see for example - WONG Ching-wah (1976) HKLR 412. I have no doubt that I should allow this appeal.

This Appellant has consistently been denied justice and I trust that before he is prosecuted at a new trial, this matter will be fully investigated by the appropriate authority.

Representation:

Mr. Steven Wong, Senior Crown Counsel for the Prosecution Respondent

Mr. Mackenzie-Ross instructed by Messrs. Raymond Hung & Co. for the Applicant.