HKSAR v. Chan Li Po

HCMA1116/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1116 OF 2006

(ON APPEAL FROM STCC 7468 OF 2006)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 15 December 2006

Date of Judgment : 15 December 2006

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J U D G M E N T

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1.This is an appeal against sentence only.  The appellant was sentenced in Sha Tin Magistracy on his own plea to 15 months’ imprisonment for an offence of illegally landing and remaining in Hong Kong, contrary to s.38(1)(b) of the Immigration Ordinance, Cap. 115.

2.The facts of the matter were that the appellant was a mainland fisherman who usually crewed on a mainland fishing boat, and as such had standing permission in the form of a Fisherman’s Deckhand Permit to land in Hong Kong as a crew of that vessel and work on the vessel at specified fish markets in Hong Kong.  When he did arrive in Hong Kong on board the vessel, it was still necessary for him to obtain immigration clearance.  On the occasion of the offence, however, he had entered Hong Kong in the absence of his vessel and was found doing unauthorized work at Cheung Sha Wan Fish Market on 24 July 2006.

3.The Magistrate in his reasons for sentence very fairly referred to the case of R v AU Yin-kwan, HCMA 19 of 1994.  In that case, Stock J, as he then was, dealt with the case of a cross-border farming permit holder who for present purposes, could be said to be in the same or a similar situation to the holder of a fisherman’s Deckhand Permit.  Stock J reduced the original 15 months’ sentence imposed upon the appellant in that case to one of 3 months.

4.Persons who hold such permits allowing them access to Hong Kong but on limited conditions are perhaps in a category of lesser culpability than a person with no right to enter Hong Kong who does so illegally, and sentencing of them should reflect that.  The level of sentence however will obviously depend on the circumstances of each case so far as they are relevant to assessing the seriousness of the breach of the terms of the permit. 

5.In the present case the appellant came to Hong Kong not on board the fishing vessel in which as a crew member he was entitled to enter, but independently of that vessel and therefore in breach of his standing permit.  He then worked illegally in Hong Kong.  This is a somewhat more serious offence than that of the cross-border farmer in Au’s case who had entered Hong Kong with the permission of the Hong Kong Government, but who then worked illegally in Hong Kong in breach of the conditions of somewhat informal tolerance given those persons referred to as Tolerated Border Crossers at the time.

6.The appellant in that case had her original sentence of 15 months’ imprisonment reduced in recognition of her status as a person who entered Hong Kong with the permission of the Government.  The present case is different.  The appellant, a mainland fisherman, had been issued with a one-year permit allowing him lawful entry to Hong Kong.  At the time of his arrest that permit was current but the permit was conditional.  He could enter Hong Kong only as a crew member aboard a specified fishing vessel.  Once in Hong Kong he was required to receive immigration clearance.  He was limited to working on that vessel and the specified fish market.  Although he had a permit, his entry was unlawful, unlike that of the farmer in Au’s case.  The appellant did not seek or obtain immigration clearance and he had no authority, therefore, to work anywhere in Hong Kong. 

7.However, I agree with the Magistrate that persons, such as the appellant, are in a different category to the typical illegal immigrant and can, depending on the circumstances of their particular case, be treated more leniently.  The Magistrate in his reasons for sentence said that if this was so, he would have adopted a starting point of 9 months’ imprisonment and imposed a sentence of 6 months’ imprisonment in recognition of the appellant’s plea of guilty. 

8.In the circumstances of this case, given the appellant’s possession of a current permit to enter Hong Kong at the time of his arrest, and given also that his entry to Hong Kong was in breach of the terms of that permit, I agree that after plea, the appropriate sentence is one of 6 months’ imprisonment.  I should point out, however, that the possession of a permit such as the appellant had may pall into insignificance if it has expired, or if the appellant has remained in Hong Kong for a very long period of time, or has consistently breached the terms of that permit on previous occasions.

9.The appellant’s sentence of 15 months’ imprisonment is set aside and substituted with a sentence of 6 months’ imprisonment.

Ms Irene Poon, GC of the Department of Justice, for HKSAR

Mr Suen Kam Hee, assigned by DLA, for Appellant