HKSAR v. Lam Fung

HCMA000553/2002

HCMA 553/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 553 OF 2002

(ON APPEAL FROM NKCC 2379/2001)

____________

____________

Coram: Deputy High Court Judge Longley in Court

Dates of Hearing: 27 August 2002

Date of Sentence: 27 August 2002

_______________

J U D G M E N T

_______________

1.This is an appeal against a sentence of 15 months imprisonment imposed on the Appellant by Mr D I Thomas sitting at North Kowloon Magistracy on 31 May 2002 following his plea of guilty to a charge of "Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong" contrary to S38(1)(b) of the Immigration Ordinance Cap. 115. The Magistrate ordered that sentence to run consecutively to a sentence of 2 years imprisonment which had been imposed upon him in respect of an offence of burglary in the Court of First Instance of High Court.

2.The Appellant had no prior convictions.

3.The Appellant was seen by the police on the awning of a flat on the 8th floor of a block at Dynasty Heights, Shek Kip Mei in the early hours of 14 April 2001. He threatened to jump if the police approached but after a number of hours of negotiations he was persuaded to surrender. He could not produce any proof of identity and admitted that he had sneaked into Hong Kong from the Mainland by boat on 4 April.

4.The Appellant's written grounds of appeal are to the effect to that the sentence was too severe. Before me he had said that he does not complain about the sentence of 15 months imprisonment but simply of the fact that his sentence on the "unlawful remaining" charge was ordered to run consecutively to the sentence imposed upon him in the Court of First Instance.

5.He argues that there have been other cases in which the courts have imposed concurrent sentences.

6.The sentence of 15 months imprisonment is the normal sentence to be expected by those who commit an offence under S38(1)(b) of the Immigration Ordinance in circumstances when they have no previous convictions for such an offence and plead guilty .

7.In so far as the matter of which the Appellant now makes complaint, it is well established that in the absence of compelling circumstances those convicted of such an offence can normally expect their sentence to be imposed consecutively to any sentence which may be imposed for an offence committed while they are unlawfully in Hong Kong. (See the case of HKSAR v Kong Yung [1999] 1 HKC 395)

8.The matters that have been put forward by the Appellant before me today, namely that he committed the burglary offence because he was hungry, that he is remorseful and that he wants to return to China to his family who do not know he is in prison in Hong Kong, are not compelling circumstances so as to justify departure from the normal principle that such sentence should be imposed consecutively to any other sentence imposed in respect of an offence committed in Hong Kong.

9.The Appellant entered Hong Kong unlawfully and committed a burglary while here.

10.I dismiss the appeal.

Representation:

Ms Evelyn Tsang, Government Counsel of the Department of Justice, for the HKSAR (Respondent)

Appellant: Lam Fung, in person