Chan Kam-po v. The Queen
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CACC000797/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 797 OF 1980 -----------------
----------------- Coram: Hon. Silke, J. in Court Date of Judgment: 29th October, 1980 ----------------- JUDGMENT ----------------- 1. The appellant was convicted in Western Magistracy, on plea, of the offence of remaining in Hong Kong after having landed unlawfully without the authority of the Director of Immigration. He was sentenced to a period of eight months imprisonment. He now appeals against that sentence. 2. The facts, which were admitted, were that on the 15th August 1980 the appellant applied for registration as an illegal immigrant with a view to obtaining a Hong Kong identity card. 3. Paragraph two of those Brief Facts I would quote in full:
4. After the facts were admitted and the learned trial Magistrate convicted the appellant the Immigration Officer who prosecuted had this to say:
5. This was the first mention of Macau and it is clear from the Statement of Finding that the learned Magistrate went on to treat the appellant as if he were an illegal immigrant from Macau in passing the sentence he did. 6. I would make it clear now that for a Macau entrant eight months is in no way an improper sentence. 7. It would appear that at some time or other the learned Magistrate received what I would term a briefing from an Assistant Director of Immigration, in Chambers, as to what was described as a new loophole by which persons can enter the Colony through using Macau as a transit point, the methods thought to be used for such purpose, the course persued by such persons after arrival in Hong Kong and the damage to Hong Kong inherent in the situation. 8. Of the appellant here he said in his Statement of Findings:
9. In the "appeal proceeding" not only did the appellant not admit that he came from Macau but asserted that he came to Hong Kong from China, albeit illegally, on the 9th August having been transported on a junk from San Hui. 10. This largely agrees with that which was said in the Brief Facts which I have already recited and which were admitted by the appellant at trial. 11. No admission as to coming from Macau was made to the learned trial Magistrate and no evidence of any kind was led as to this. 12. It is notorious that until recently those illegal immigrants who came from China not only were not prosecuted but that they, on reporting to Immigration, received Identity cards. 13. As Mr. Adam has said I am bound by the state of matters as they were before the learned trial Magistrate for it is upon that state that the sentence is based. 14. In the absence of an admission by the appellant that he did come from Macau and in the absence of any evidence led to show that he did the learned trial Magistrate, with respect to him, should not have treated the appellant as a Macau entrant. The mere fact of his being before the court indicating that he is being treated differently from the ordinary China illegal, is not enough. 15. On that basis I think he should, and the Crown does not oppose this, be treated as if he were an ordinary illegal and, in the light of the treatment accorded previously to such persons, the sentence imposed is wrong in principle and I would set it aside, invoke the provision of Section 36 of the Magistrate's Ordinance and order that he be absolutely discharged with no conviction to be recorded.
Representation: Appellant in person - Chan Kam Po Mr. Adams for Crown/Respondent |