Attorney General v. Chung Kwan Wai

Case No.CAAR 8/1992

Court

Court of Appeal

Date31 Jul 1992

Judge—

Case Document

100%Judiciary

CAAR000008/1992

IN THE SUPREME COURT	1992,No.8
	(Application for Review)

BETWEEN
	ATTORNEY GENERAL

	AND

	CHUNG Kwan-wai

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Coram: Hon. Yang, CJ, Jones & Wong, JJ

Date of Hearing: 31 July 1992

Date of Judgment: 31 July 1992

Date of Handing Down Reasons: 5 August 1992

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J U D G M E N T

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Hon. Yang, CJ:

1. This is the Attorney General's application for review of a sentence of one month's. imprisonment passed by Mr. Peter White sitting at Tuen Mun Magistracy upon the respondent on his own plea for the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. The admitted facts are that the respondent and two others entered Hong Kong illegally from the Mainland on the 17th of April this year and went to the Ping Kee Beancurd Factory at Pat Heung, N.T. seeking employment. Their request was refused but they were permitted to stay at the factory for a few days. In the small hours of the 22nd of April the police raided the factory and arrested the respondent and the two others.

3. It is not disputed that by a policy statement made publicly, the Attorney General on the 17th October 1990 announced that certain categories of illegal immigrants were liable to be prosecuted, for remaining in this territory, and these included those found "at places of employment ... regardless of the number found". The Attorney General went on to say: "It should be clear, then, that this policy will be directed at those illegal immigrants who come to Hong Kong for economic reasons."

4. The learned magistrate in his Statement of Findings made the following observations:

"I am as I have said reluctant to interfere in the way in which the crown reads its own policy. However and having regard to the tariffs magistrates implement in regard to the sentencing of such offenders, there remains in my view a clear duty to monitor the Crown's conduct and to correct by sentence any mistake that is made in connection with the initiation of any particular prosecution, see R v Ng Tung-fong [1992] 1 HKLR 114. Indeed absent this capacity to monitor, the court's reputation for independence from the executive is imperilled and I note with approval that Crown Counsel has conceded that this is an appropriate matter for my consideration."

5. Noting that the respondent had stayed at the factory as a place of, refuge, he thought it inappropriate impose the tariff sentence of 15 months' imprisonment as suggested in The Queen v So Man-king [1989] 1 HKLR 142.

6. In that case, the learned Acting Chief Justice said (at p. 146 C-D):

"We express no opinion as to whether the executive ought, as a matter of practice, to give public notice of any intended change in policy. That -is a matter entirely within the executive's own discretion. But we are satisfied that the fact that the authorities have, by a well publicised course of conduct over many years, lulled a particular class of persons into a justifiable sense of security that the law would not be strictly enforced so far as they are concerned, and then suddenly proceeded to enforce the law without giving those persons any opportunity whatsoever to reconsider their position, is a factor that may properly be taken into account when assessing sentence."

7. In the recent decision of The Oueen v Ng Tung-fong[1992) 1 HKLR 114, Silke V-P said this (at p. 118):

"The courts are the masters of their own house and they may rightly consider the proper exercise of executive power where that exercise operates to a defendant's detriment. The courts do not blindly apply executive policy but pay regard and attach importance to questions of public interest where they perceive public interest lies. From this stemmed the guideline sentence of 15 months' imprisonment. Magistrates imposing the normal sentences are applying judicial policy and not implementing executive policy. The courts do not dictate to the executive, but if the courts, properly advised, consider that executive policy had been applied unfairly to an individual then it is proper for the courts to mitigate that unfairness by reducing the length of any sentence it might think fit to impose - but always bearing in mind that an offence contrary to law has been committed. To effect this sentencing courts have a discretion to-depart from guidelines."

And (at p. 119):

"It is to be hoped that for the future a much closer scrutiny will be applied to prosecutions under the Immigration Ordinance so as to avoid the manifest unfairness to individuals resulting from the prosecutions of persons who lie outside prosecuting policy causing one individual to be dealt with in a manner different from another. This would also have the meritorious effect of saving the time of the courts."

8. It is submitted on behalf of the Attorney General in the present application that the prosecution came well within the publicly declared policy which had been followed ever since its pronouncement in 1990. The respondent was found in a place of employment and he had come to Hong Kong "for economic reasons". The learned magistrate was therefore interpreting the prosecution policy in terms much narrower than that anticipated, namely, that the illegal immigrant must be found to be working at the place of employment. The policy declaration was n41ot restricted in its application in the sense envisaged by the learned magistrate.

9. We of course agree with everything that was said by the learned Acting Chief Justice and Silke V-P. We are nevertheless of the opinion that the prosecution of the respondent came squarely within the Attorney General's declared policy.

10. There being no suggestion of exceptional humanitarian considerations, the usual sentence of 15 months' imprisonment should have been imposed. The respondent had one similar previous conviction in 1989 for which he was sentenced to 15 months' imprisonment. The proper sentence for him in the present case should therefore be one of 18 months' imprisonment. Taking into consideration that this is a review, and also noting that the recent practice of this Court is not to automatically give a discount of sentence in a successful review, we nevertheless feel that this is a proper case for a discount to be given. We therefore allow the application and sentence the respondent to 15 months' imprisonment.

	T. L. Yang
	Chief Justice

Representation:

Mr. I.G. Cross leading Mr. W.S. Cheung

for Crown/respondentMr. Lambert Lee (DLA) for respondent