The Queen v. Cheung Kwok-hoi and Others

HCMA000794/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEALNo. 794 OF 1988

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BETWEEN

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Coram: The Hon. Hr. Justice Barnes in Court

Date of Hearing: 11th October 1988

Date of Delivery of Judgment: 11th October 1988

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J U D G M E N T

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1. The 15 Appellants pleaded guilty in the Magistrates Court to the offence of attempting to land in Hong Kong without permission, contrary to the provisions of the Immigration Ordinance and each was sentenced to imprisonment for 15 months.

2. Mr. Cheng Huan who appears for them today relies on several grounds in support of a contention that that sentence was excessive in the circumstances. The brief facts which were put before the Court revealed that all were motivated to come because of the devastating effects on the Wei Tung county in China of typhoon Warren. They all lived in that county and Warren destroyed vast areas of cultivation and some 4,000 homes. They got together and decided to buy a sampan and make their way to Hong Kong. However, they were intercepted in Hong Kong waters arrested, charged and brought to Court.

3. Mr. Cheng's main submission is that they were in effect scapegoats on a change of government policy and it is fairly conceded by Mr. Lugar- Mawson on behalf of the Crown that from the 10th May of this year, it was decided that illegal immigrants arriving in Hong Kong in organised groups could be prosecuted for attempting to land in Hong Kong rather than being repatriated to China.

4. In the Court of Appeal decision laying down the guidelines which the learned magistrate followed in imposing the sentences of 15 months, it was said:- "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 of the authorities have, by a well publicized course of conduct over many years, lulled a particular class of persons into a justifiable sense of security that the law could 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".

5. In that case the Court of Appeal went on to allow the appeals of the Appellants for that reason and reduced the sentences to imprisonment for 6 months.

6. In this case these Appellants were motivated to come by an act for which they were in no way responsible. They faced personal crises caused by a sudden natural disaster which practically destroyed the economy upon which they were reliant for their livelihood and most of the living quarters in their district. But the real irony is this had Warren struck them in early May rather than in late July, they would not have been prosecuted for doing what they did but merely repatriated on being caught.

7. Mr. Lugar-Mawson conceded, in the course of his submissions when I asked him, that each of them could reasonably have believed notwithstanding the publicity regarding illegal immigrants found on construction sites, that if he made it to Hong Kong and avoided working on a construction site, he would not run the risk of prosecution if caught but merely the risk of repatriation. I consider that these Appellants do warrant consideration as illegal immigrants prosecuted following an unannounced change in policy.

8. For that reason, therefore, I allow the appeals in respect of each Appellant, quash the sentences and substitute in each case a sentence of imprisonment for 6 months.

Representation:

Mr. G.J. Lugar-Miawson, Sr. Asst. C.P. for Crown.

Mr. Cheng Huan, Q.C., Mr. Louis Tong Appellant (D.L.A.) for Appellant.