The Queen v. Tam Chi Wai

CACC000434/1988

DCC 340/88

IN THE COURT OF APPEAL

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BETWEEN

Coram: Hon. Fuad V-P., Hunter J.A. & Macdougall J.

Date of Hearing: 30th December 1988

Date of Delivery of Judgment: 30th December 1988

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J U D G M E N T

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Macdougall J :

1. This is the judgment of the Court.

2. The Applicant, who pleaded guilty before His Honour Judge Moylan in the District Court both to having remained in Hong Kong without authority after having landed unlawfully contrary to Section 38(l)(b) of theImmigration Ordinance, and to going equipped for stealing, was sentenced to 2 years and 3 months imprisonment on the 1st charge and to I month consecutive on the 2nd charge. He now appeals against both sentences.

3. The agreed facts were that at about 9:50 a.m. on the 19th of March this year, the suspicions of a police sergeant on motorcycle patrol were aroused in relation to the movement of a private car. He sounded his siren with a view to stopping the vehicle and questioning its occupants. However, the driver accelerated and made a series of turns into different streets in an effort to shake off pursuit.

4. Eventually the vehicle was held up in traffic in Gloucester Road, Wanchai and the 3 occupants hurriedly alighted and abandoned it. With the assistance of another police officer and a passer-by, the sergeant managed to apprehend the Applicant. He was found to be wearing a glove on one hand and to have a pair of tights knotted at one end in his trousers pocket. He explained that he had rubbed glue on his hands in order to avoid leaving finger prints, and that he had come to Hong Kong 'to snatch'.

5. Further enquiries revealed that the Applicant had arrived illegally at Lau Fau Shan at about 6:00 a.m. on the same day and had been picked up by 2 other men in the same vehicle that had been pursued by the sergeant.

6. It is contended on appeal that the total sentence of 2 years 4 months is manifestly excessive; that the judge failed to follow the guideline down by another division, division of this Court in The Queen V. So Man King, M.A. 408 of 1988; and that in the circumstances the judge should have ordered that the sentences be served concurrently.

7. In our view the two of fences were of an entirely different character and bore no necessary relationship to each other. We therefore do not consider that there is any merit in the contention that it was wrong for the judge to impose consecutive sentences.

8. We are also unable to agree that the judge failed to follow the guidelines laid down in The Queen v. So Man King. In that case, the Court noted that Magistrates had been imposing sentences of 15 months imprisonment after pleas of guilty for offences against Section 38(1) (b), and stated that a sentence of that length should continue to be the basic guideline. However, the Court was by no means suggesting that such a sentence should not be exceeded in any particular case. Indeed, as the following passage from the judgment of the Court shows, it was at pains to make it plain that heavier sentences might well be justified:

"......... the Court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence, such as the actual use of a forged or other person's identity card to obtain some particular benefit."

9. The Applicant had been sentenced in February 1984 to 6 months imprisonment for using an identity card relating to another person. In November 1984, shortly after serving that sentence, he was convicted of the same offence and of remaining in Hong Kong without authority after having landed unlawfully. On that occasion he was sentenced to 18 months imprisonment concurrent on each offence. In May 1986 he was again convicted of using an identity card relating to another person and was sentenced to 2 years imprisonment. It was not long after his discharge on that occasion that he committed the present offences. Clearly the Applicant is determined to flout the law of Hong Kong. The sentences imposed on him for those earlier offences have had no deterrent effect on him. Repeated offenders must expect to receive heavier sentences than that laid down in the basic guideline.

10. Not only has the Applicant shown himself to be a persistent offender but his illegal entry into Hong Kong on this occasion was aggravated by the fact that his object in coming here was to commit crime. In his reasons for sentence the judge stated that, had the Applicant been convicted after a contested trial, the maximum custodial sentence of 3 years imprisonment for an offence against Section 38(1)(b) would have been appropriate. We entirely agree. In our view, the sentences imposed were not a day too long. There is no merit in this application. Leave to appeal is therefore refused.

Representation:

Mr. S.E. Stone, S.C.C. for Crown Prosecutor.

Mr. Eric Knos instructed by M/S Chan & Kong for the appellant.