Attorney General v. Liu Chi Ping

CAAR000001/1990

BETWEEN

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BETWEEN

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Coram: Hon Sir Derek Cons, V-P, Kempster, JA and Barnes, J

Date of Hearing: 16 March 1990

Date of Judgment: 16 March 1990

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JUDGMENT

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Kempster, JA (giving the judgment of the Court):

1. On 25 January 1990 the respondents to Application for Review No. 2 of 1990 appeared before Mr Paterson-Todd in the Fanling Magistracy. On the same day also in the same magistracy Liu Chi Ping, the respondent to Application for Review No. 1 of 1990, was convicted on his own plea by the same magistrate of possessing a forged travel document contrary to s 42(2)(c)(i) of the Immigration Ordinance (Cap 115). On l February the magistrate sentenced him to one day's imprisonment. Since he had already been in custody for some six weeks that would, had he not been subject to detention for the purposes of deportation, have been tantamount to an order for his immediate release. The magistrate also directed that he be repatriated the People's Republic of China forthwith. We, can find,-no power warranting such an order. With the leave of this court, which when granted was coupled with an order for his continued detention, the Attorney General asks for 6-review of the sentence of one day's imprisonment pursuant to s 81A(1) of the Criminal Procedure Ordinance (Cap 221) on the grounds that it was wrong in principle and manifestly inadequate.

2. Liu was arrested after a chase and a struggle on 25 December 1989 outside a construction site at Tai Po. When asked for his identity document he produced what he subsequently admitted was a forged Chinese permit, one page of which was embossed with a forged Hong Kong chop, ostensibly permitting him to travel between China, Macau and Hong Kong.

3. Having regard to the sentence passed it is not surprising that no reference was made in the magistrate's Reasons for Sentence to Liu's age, which appears to be between 18 and 21 years, or to the provisions of s 109A of the Criminal Procedure ordinance or that no reports were sought. It was and is not apparent how long Liu had been in Hong Kong though not, it would seem, for long enough to render a plea of good character of any significance. However it is obvious that the document in question had been acquired and carried in the hope of validating his unlawful presence here. Like the offences of using an identity card which has been forged or is the property of another, contrary to s 7A of the Registration of Persons Ordinance [Cap 177] or to the now repealed regulation 12(3) of the Regulations made thereunder, the substantial consideration to be taken into account when passing sentence on an illegal immigrant must be the offender's unlawful presence in the colony. R v Lau Chung Kwan [1987] HKLR 203; AG v Lam Ping Chuen [1989) 1 HKLR 161. When such a consideration arises, as it necessarily does on a conviction for landing or remaining in Hong Kong without authority contrary to s 38(1) of the Immigration ordinance, this court has suggested that a sentence of 15 months imprisonment may well be appropriate after a plea of guilty; the purpose of sentencing for such offences being deterrence. AG v So Man King & Ors [1989] 1 HKLR 142.

4. That such a sentence of imprisonment may properly be imposed upon an offender of less than 21 years of age, immigration and related offences not being excepted by the 3rd Schedule to the Criminal Procedure Ordinance, has been established by this court in AG v Lam Ping Chuen and in AG v Tai Man Ping & Ors [1989] 1 HKLR 553. In the latter case a number of illegal immigrants all aged some 18 years had, it would appear, been convicted under s 38(1)(A) of the Immigration Ordinance. As was said in the judgment in that case this is an age group members of which are particularly prone to effect unlawful entry into Hong Kong. It must be accepted from these authorities that no method of dealing with such persons otherwise than by imprisonment is normally appropriate. In the premises we find that, the sentence,. passed by the magistrate on Liu Chi Ping was indeed wrong in principle and manifestly inadequate and we order it to be quashed. For the reasons outlined a sentence of 15 months. imprisonment would have been acceptable. Following accepted. practice in this court we impose a sentence of, 12. months imprisonment in substitution.

5. We turn back to Application for Review No. 2 of 1990. During the afternoon of 22 January last nine illegal immigrants of full age including the respondents Chan Chun Lap, Chan Ah Sum, Chan Kin Cheong, Chan Hon Shing, Yeung Chun Shing, Chan Kin, Lam Shing and Chan Man were arrested on a construction site at Tai Po Industrial Estate. Each was charged with unlawfully remaining in Hong Kong contrary to s 38(1)(b) of the Immigration Ordinance. Each pleaded guilty, was convicted and sentenced to three months imprisonment. The magistrate's Reasons for Sentence referred to the pleas, to the offenders' good characters, as to which., our observations in relation to Liu in Application for Review '. No. 1 of 1990 apply, and to the further factor that there was no evidence of employment. Now, with the leave of the Chief Justice, the Attorney General asks us to review these sentences; contending again that they, were wrong in principle and manifestly inadequate.

6. Having heard both Applications for Review together, we repeat that this court has on earlier occasions suggested, - a guideline of 15 months imprisonment for offences of this,..' nature where the offender has entered a plea of guilty and, in so doing, emphasised the importance of deterrence. R v So Man King & Ors; AG v Chan Shu Mui & Ors, AR No. 13 of 1989 (unreported). The latter decision, which also relates to sentences imposed in the Fanling magistracy by Mr Paterson-Todd, was decided on 17 January 1990; over a week before he passed the sentences now impugned. While we assume that he had not then been informed of it we expect that he will honour the guidance given by this court hereafter.

7. The sentences imposed on the eight respondents were, like that imposed on Liu Chi Ping, wrong in principle and manifestly inadequate. They must be quashed. A sentence of 15 months imprisonment would have been appropriate to the circumstances of each respondent. In so saying we accept that Chan Kin Cheong's father is dangerously ill. But Chan came to Hong Kong with knowledge of that illness and, accordingly, we do not think that any strong humanitarian consideration arises in relation to him or to any other of the respondents whose sentences we have considered today.

8. Again following accepted practice we impose on each of the respondents to Application for Review No. 2 of 1990 a sentence of 12 months imprisonment in substitution for that of three months.

Representation:

Chan Man in person

Lambert Lee, DLA for Respondent in Application for Review
              No. 1 of 1990 and D1 - D7 in Application for Review
              No. 2 of 1990

John Reading and GE Forlin for Attorney General