Re Li Hung Fai and Others

CAAR000009/1990

IN THE COURT OF APPEAL

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Coram: Hon. Sir Derek Cons, Ag. C.J., Clough, J.A., Power, J.A., Penlington, J.A. & Macdougall, J.A.

Date of Hearing: 31 July 1990

Date of delivery of judgment: 15 August 1990

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JUDGMENT

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Sir Derek Cons, Ag. C.J., delivered the judgment of the Court:

1. These proceedings encompass five applications brought by the Attorney General, with the leave of the Chief Justice, for the review of sentences passed by various magistrates, and appeals against sentences similarly passed, referred to this Court under Section 118(1)(d) of the magistrates' Ordinance, Cap. 227. The Attorney does not wish to pursue the applications in respect of the 2nd Respondent in Review No. 5 or the sole Respondent in Review No. 6 as the Respondents are no longer within the jurisdiction.

2. The offences covered by the remaining proceedings comprise that 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, Cap. 115, (in one instance together with the offence of using the identity card of another person, contrary to Section 7A(IA) of the Registration of Persons Ordinance, Cap. 177) and that of attempting to land in Hong Kong without the permission of an Immigration Officer, contrary to Section 38(1)(a) of the same Ordinance. The substantial element in sentencing for these offences, as was observed in R. v. So Man King and Others [1989]1 H.K.L.R. 142 is the unlawful presence of the offender in Hong Kong. In that case, decided in August 1988, this Court confirmed as a basic guideline imprisonment for fifteen months.

3. Mr. Martin Lee, who appears for those guilty of remaining in Hong Kong without authority - or to put it in more practical terms, for those who had found employment on construction sites- argues that the approach of this Court in that case was incorrect; alternatively that it has been made so by a subsequent change in circumstances. In remarks which could more usefully have been directed to those responsible for legislation, he has stressed an imperative need for improved and more certain sanctions against those who offer employment to illegal immigrants, a course mooted by this Court earlier this year in AG v. Chan Siu Mui and Others unreported 17th January 1990 A.R. 13/89. We understand that consideration is now being given to this aspect.

4. The foundation for Mr. Lee's argument is that fifteen months' imprisonment is, in fact, not a deterrent; that the drop in illegal immigrants detected early in 1988, following an increase in the length of sentences then imposed, and upon which this Court relied, could well be attributable to other factors; alternatively, that whatever might have been the position then, the recent surge in numbers arrested indicates that the sentences are no longer a deterrent. The reason for this, he suggests, is that as there has been no official or public promulgation of the Attorney General's prosecution policy across the border, the likelihood of lengthy imprisonment, as he is instructed by his lay clients, is there completely unknown.

5. The degree of awareness among those minded to enter this territory unlawfully is necessarily a matter of speculation. But it has to be noted, as we do from the statistics supplied to us by the Crown, that in the period between the decision in So Man King and the end of March this year - the first batch of construction workers in these proceedings were arrested on the 11th April - not far short of 7,000 illegal immigrants have been prosecuted, of whom about 80% will have received sentences in the region of twelve to eighteen months. Of those some 2,400 allowing for remission, will have completed their sentences and returned to whence they came, while those still in prison will have friends or families there cognizant of their fate.

6. On the other hand there is some force in Mr. Lee's criticism of the selective nature of the prosecutions which follows from a set policy laid down by the Attorney General. The policy has been varied or expanded from time to time and is set out in many reports, but it may be useful to reiterate that the present position, as we understand it, is that any illegal immigrant from China discovered within the territory will be arrested and repatriated, but will not be prosecuted before repatriation unless he or she

7. We are told that despite the recent publicity given to those falling within class (3), the bulk of illegal immigrants arriving in the territory do not in fact fall within any of the four classes. In 1989 only 24% of the total arrested were in one or other of them, while up to the end of June this year, there were only 21.6%. The decision to prosecute or not is exclusively that of the Attorney General, but we cannot help observing that the 75% or 78.4% who were thus returned to China would have carried with them the good news that they themselves at least were not punished. To some extent this must have undermined the deterrence intended by the sentences on the others.

8. Moreover, we feel bound to draw attention once again to what was said in So Man King at p. 145:

"Thus if the authorities continue their present policy, an illegal immigrant who accepts engagement. On a construction site where there are at least two other immigrants will, if apprehended there, find himself in a vastly different situation from one who for example chances to find more individual employment or is perhaps arrested on his day off. Such almost incredible disparity of treatment will no doubt give rise to an understandable sense of grievance in a man who is sentenced to 15 months' imprisonment. But it is one that is not in the power of the Court to remedy."

9. It has to be accepted that such sentences will not in any event be a complete deterrent. There are obvious economic and many other possible factors that will influence those considering whether or not to take the risk of coming here. But we cannot agree that the sentences have no deterrent effect whatsoever or that they should be abandoned in favour of a simple caution.We appreciate the public concern that those who employ illegal immigrants are at the moment escaping punishment and that the authorities treat differently immigrants from countries other than China. But the courts can only deal with those who are brought before them. And in doing so they must have regard to the statutes passed by the Legislative Council. It is clear that the Council intended offences of this kind to be dealt with seriously. Otherwise it would not have set a maximum of three years' imprisonment for an offence of which the very worst of its kind, - the case for which the maximum penalty is normally reserved - is more serious than the run of the mill case only by the number of times it is repeated. Furthermore, it is an offence of which the only significant element of those usually taken to be part of the sentencing process is that of deterrence.

10. A further reason suggested for reduction of the sentences is that it would ease overcrowding in the prisons, which, we are told, currently stands at 37%. Illegal immigrants make up one-third of the prison population. Our attention is drawn to the words of Lord Lane, the Chief Justice of England, in R.v. Bibi [1980] 1 W.L.R. 1193 at 1194:

11. We respectfully agree that no sentence, whatever the offence, should be passed for longer than is thought properly necessary, but would prefer to found that concept on the basic principle of the right to liberty than to keep the prison population within the bounds set by the authorities. Judges and magistrates pass such sentences as are authorised by the law and considered appropriate in the particular circumstances. It is then up to the relevant authorities to see that the sentences are duly carried out. In our experience that has always been the view in this territory, illustrated e.g. by the comments of the Full Court in R. v. Wong Ching Sim and Others unreported Crim. App. 153/72 13th April 1972:

"        It is not clear whether the trial judge would have ordered the second Appellant to be detained in a Training Centre but for the indication that there was no vacancy, since he emphasised some aggravating factors but there is reason to think he may have been affected by this extraneous consideration introduced by the Commissioner's report. The Court is given power to make such an order when it considers such an order is appropriate. And when such an order is made it is the duty of the Executive to carry it out as in the case of any other order made by the Court."

12. Mr. Lawrence Lok appears for those before the Court who were arrested as they came into Hong Kong in groups by sea, thus falling within the fourth of the classes we enumerated earlier.

13. There was a similar situation before Barnes, J., in R. v. Cheung Kwok Hoi and Others unreported Mag. App. 794/88 11th October 1988, i.e. two months after the judgment in So Man King. The judge relied upon a passage from So Man King to reduce the fifteen months' sentences passed by the magistrate to sentences of six months. The decision was followed in May this year in R. v. Lung Hon Wah and Others unreported Mag. App. 144/90.

14. The relevant passage from So Man King (at p. 146) reads:

"        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 satistied 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."

Barnes, J., was satisfied that this passage allowed him to give the offenders "consideration as illegal immigrants prosecuted following an unannounced change in policy".

15. The "particular class of persons" referred to in So Man King, like those represented by Mr. Lee, had been arrested on a building site, i.e. they were persons who were already in Hong Kong. They may perhaps have been here for some time and have witnessed the Attorney's previous policy in action. We do not find in the passage quoted, nor would we expect to find, any indication that the consideration given to those persons should be extended to others elsewhere, who had at that time taken no step whatsoever to offend the laws of this jurisdiction.

16. Furthermore, the decision of Barnes, J. was given on 11th October 1988. Since then all persons so arriving in Hong Kong have been regularly brought before the courts and there dealt with.. Of those concerned in these proceedings the earliest did not set sail from China until the 9th of February this year, some sixteen months later. We do not accept that they can properly be termed "persons lulled into a justifiable sense of security".

17. We turn now to the individual cases, dealing with them as best as we can in view of the fact that no counsel has addressed us upon their particular circumstances.

18. Review No. 5 relates now to only three defendants, sentenced by Mr. Paterson-Todd to six weeks' imprisonment. There is nothing in his lengthy Reasons for Sentence to indicate that their circumstances were in any way unusual, save that all are young. AG V. Tai Man sing and others [1989]1 H.K.L.R. 533 confirms that youth in itself is no excuse. There the offenders were 18 years of age. But extreme youth cannot be ignored: R. v. Wong Siu Chung unreported Mag. App. 1599/89 15th March 1990. Proper sentences in this instance would therefore, in our view, have been sentences of six months' imprisonment.

19. In Review No. 7 the Respondent obtained employment, and opened a savings account, both with the assistance of another man's identity card which he had purchased in Shenzhen for Renminbi 500. The card had been lost in Mongkok two months' earlier. In this instance Mr. Paterson-Todd declined to give any specific reasons for his sentence, but there is no apparent factor which would warrant departure from the basic guideline.

20. The same must be said of the 13 Respondents to Review No. 9 in which Mr. Muttrie, having regard to the decision of Lung Hon Wah a few days earlier, had passed sentences of six months.

21. Review No. 12 concerns seven of 121 who were arrested on the Kwong Yuen Estate construction site at Siu Lek Yuen. Mrs. M. Chui passed sentences of fifteen months and in one instance of twenty months, but felt compelled to suspend the same for three years as an exercise in mercy. She relied upon the comments of this Court in R. v. Yau Koon Yan unreported A.R.12 of 1984:

"It is necessary' for us from time to time to reassure judges and magistrates that, when tariffs are issued by this court, they are intended to be guidelines and not straight jackets. There must always be room for a judge or magistrate to exercise mercy and to impose sentences well below the normal range if the circumstances of the case, in his view, justify such a course."

22. The reasons for her decision were hot confined to the particular offenders before. her, but roamed at length over considerations covered earlier in this judgment or in So Man King. In AG v. Lam. Ping Chun [1989] 1 H.K.L.R. 161 (at 162) this Court observed:

"...... humanitarian considerations must always be respected. On occasions they may even be so strong that suspension of the sentence would be appropriate"

23. We do not resile from that position, but in this instance there was nothing to make suspension appropriate.

24. However we note from the file of the lower court that the 4th Respondent Yip wai To and the 7th Respondent Lau Wai Chun may properly be said to be of extreme youth and warrant sentence accordingly.

25. In Mag. App. 276 of 1990 Mr. Crawshaw, finding no humanitarian reasons, correctly imposed a sentence of 15 months. In Mag. App. 669 Mr. Lim, following a mention in Wong Siu Chung of leniency extended to women of 20 years of age, imposed a sentence of twelve months. We do not think it necessary to interfere.

26. For these reasons we dismiss the Application for Review No. 5/90 insofar as it relates to the 2nd Respondent and Review No. 6/90 in its entirety. vie also dismiss Magistracy Appeals 276 and 669 of 1990. We allow the remainder of the Applications and, allowing the discount usual in proceedings of this kind, we substitute in Review No. 5 sentences of four months; in Review No. 7 sentences of twelve months to run concurrently; in Review No. 9 sentences of twelve months; and in Review No. 12 sentences of four months upon the 4th and 7th Respondent, fifteen months upon the 6th Respondent and twelve months upon the remainder, all these sentences to be immediate.

27. We should add that this Court has allowed discounts in proceedings of this kind since at least 1975. However the practice appears to find no support in the actual words of section 81A of the Criminal Proceedings ordinance, Cap. 221, and we have some doubt as to its propriety. We understand that in England and wales, where similar legislation has been recently introduced, no such practice has been adopted. No argument on the question has been addressed to us in these proceedings, but we would be obliged to hear argument at the next opportunity.

Representation: