HKSAR v. Yang Ying Ying

[English Translation – 英譯本]
  HCMA90/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 90 OF 2008

(ON APPEAL FROM STCC 9229 OF 2007)

----------------------

----------------------

Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 29 April 2008 and 26 June 2008

Date of Judgment : 26 June 2008

----------------------

J U D G M E N T

----------------------

1.The Appellant was convicted and sentenced to 15 months’ imprisonment on her own plea for an offence of remaining in Hong Kong without authority after landing unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115. The date of the conviction is 22 December 2007. The Appellant now appeals against both the conviction and sentence.

Particulars of offence

2.It was alleged in the charge that the Appellant remained in Hong Kong without the authority of the Director of Immigration having landed in Hong Kong unlawfully on 20 December 2007.

Brief facts of the case

3.As revealed in the bundle, the Appellant admitted the following facts in the hearing in the first instance: On 20 December 2007, officer(s) of the Immigration Department found the Appellant serving customer(s) in a guesthouse in Starlight House, 34 Leighton Road, Causeway Bay. Under caution, the Appellant admitted that she was an illegal immigrant and that she entered Hong Kong from Shenzhen on 11 December 2007 without formal immigration clearance. She said she was subsequently taken to the guesthouse to take up paid work.

The crux of this case

4.In a word, it is submitted for the Appellant that her official name is Yang Shu Xian and that Yang Ying Ying is just her pet name. It is also contended that her failure to leave Hong Kong since entering on 16 February 2001 on the strength of a two-way permit in fact amounted to overstaying, not illegal immigration. Therefore, the offence of the present case is not the correct one and the sentence is too severe.

Additional evidence

5.At my request, parties conducted investigation separately after the first hearing for mention. This is an essential procedure for this kind of appeal and the Court cannot simply rely on the Appellant’s side of the story. Consequently, the Respondent accepted the Appellant’s version of her true identity. Relevant materials have been produced before me upon motion as additional evidence. They include the Appellant’s affirmation, identity card in the Mainland, information of her registered residence and her filed photograph in the Guangdong Public Security Bureau as well as the movement record of two-way permit holder kept by the Immigration Department of Hong Kong.

Appeal against conviction

6.Nonetheless, I do no think the conviction in the present case can be reversed.

7.In her affirmation, the Appellant said she ‘lost’ her two-way permit not long after she entered Hong Kong on 16 February 2001. Thereafter, she ‘remained in Hong Kong’ and ‘(she) was told by friend(s) that she should say that she was an illegal immigrant in case she got arrested in Hong Kong and that (she) would then be repatriated to the Mainland by relevant authority in Hong Kong.’

8.It is very obvious that the purpose for which the Appellant admitted to be an illegal immigrant was, at least in her imagination, to avoid the legal consequence of ‘remaining in Hong Kong’, and that she would be ‘repatriated to the Mainland’ without any punishment. This is the only reasonable inference. If not, why would the Appellant have taken that advice and told a lie upon arrest? Would she have possibly been even unable to differentiate between illegal immigration and the two-way permit system which was legitimate and had been in operation for long? Going back a bit further, ‘losing’ a two-way permit could have been handled in an open and aboveboard manner, why did she assume that she would be arrested? On the contrary, on what ground did she believe that she could remain in Hong Kong for 6, 7 years instead of going back to the Mainland simply because of having ‘lost’ her two-way permit?

9.Further, as revealed by the transcript of the audio recording of the hearing in the first instance, the Defence counsel submitted in mitigation that the Appellant ‘came to Hong Kong by a vehicle’. The Magistrate found it strange and asked if there was a ‘concealed compartment’ in the vehicle. Counsel then explained that ‘the truck was huge and sometimes (one) might not be found out … that easy to be found out.’ All these questions and answers transpired in the presence of the Appellant. In any event, I do not believe that the counsel would give the above remarks uninstructed.

10.Her plea to the offence in the first instance hearing was an intentional and conscious act of the Appellant. This is my judgment.

11.In the light of that, the Appellant’s case does not fall into any of the circumstances in which a guilty plea could be rendered null and void as laid down by the Court of Appeal in HKSAR v. Wong Chi Yuk [2000] 3 HKLRD 125. In fact, it is very difficult to distinguish the nature and circumstances of the present case from those of Wong Chi Yuk of which the appeal also failed.

12.The appeal against conviction is dismissed.

Appeal against sentence  

13.The Appellant overstayed in Hong Kong for a long period of 6 years and 9 months. She frankly admitted before me that she came to Hong Kong for the sole purpose of looking for a job. She did not even have any relatives in Hong Kong. For this offence and on such facts, I am of the view that the sentence on a guilty plea should be at least 11 months’ imprisonment. Therefore, although the Appellant has only herself to blame and that she has wasted public money as well as time of the government and the judiciary, judging from the actual offence itself, 15 months’ imprisonment is indeed to severe, so I cannot but allow her appeal. Of course, the Department of Justice can consider whether the Appellant was already in breach of another ordinance by misleading officer(s) of the Immigration Department.    

14.In any event, the appeal against sentence is allowed. The sentence is varied from one of 15 months’ imprisonment to one of 11 months’ imprisonment.

Mr. Martin HUI, SGC of the Department of Justice, for HKSAR

Mr. LO Pui Yin, instructed by the Legal Aid Department, for the Appellant