CHAN CHI-KIN AND ANOTHER v. THE QUEEN

CACC000305/1979

IN THE COURT OF APPEAL	1979 No. 305
	(Criminal)

BETWEEN
	CHAN Chi-kin	Appellants
	LI Kwan-yee (F)
	AND
	THE QUEEN	Respondent

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Coram: Huggins and Pickering, JJ. A. and McMullin, J.

Date of Judgment: 2 May 1979

 

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JUDGMENT

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Pickering, J.A.:

1. The two appellants, now man and wife, each appeal against sentences of 12 months' imprisonment imposed following their conviction on a charge of obtaining a pecuniary advantage by deception. The couple had organised, and sold tickets for, a dinner and ball at the Excelsior Hotel, a function apparently upon some scale since the bill totalled more than $31,000. They did not pay the Excelsior and in fact whilst the dinner was in progress on 4th December, 1977, they were flying to New Zealand.

2. It is not contended that the sentences were manifestly excessive. On the contrary, the appeal springs from a facet of the New Zealand Immigration Law unknown to the appellants or their counsel at the trial and so not brought to the attention of the learned judge but which, it is contended, had it been known to him might have resulted in a slightly more lenient sentence.

3. In New Zealand the 1st appellant had the status of a "landed immigrant". The 2nd appellant had a limited tourist visa which she overstayed. They each secured employment, he as a labourer, she in a restaurant. They married each other in New Zealand.

4. The New Zealand Immigration Authorities commenced deportation proceedings against the 2nd appellant and a deportation order was made against her. Her appeal against that order was stayed when the Hong Kong Police arrived in New Zealand seeking, and obtaining, the return to Hong Kong of the appellants as fugitive offenders. Upon their release from prison the appellants wish to return to New Zealand but what was not known at their trial is that under s.4(c) of the New Zealand Immigration Act (No. 43 of 1964) any person who has been sentenced to a term of imprisonment for one year or more is prohibited from landing in New Zealand. Hence this appeal.

5. We do not know what view the trial judge would have taken had he known of the new factor which we have allowed to be argued, out of time, before us. He may well have taken a different view and imposed a slightly more lenient sentence. We do not condone the offence neither do we criticise the sentence imposed. However, by a majority, the appeal is allowed, the sentences of 12 months' imprisonment set aside and sentences of 11½ months substituted.

6. At that the appellants are by no means out of the wood nor is the effect of our decision to fetter in any way the discretion of a friendly dominion for New Zealand's options are very much open to it. The appellants may or may not be allowed to re-enter New Zealand. If they are so allowed the 2nd appellant will have to pursue her appeal against the deportation order outstanding against her and may or may not succeed whilst the 1st appellant could at any time have an order signed against him to leave New Zealand, under s.22 of the Immigration Act, on the ground that he has been convicted of an offence for which the Hong Kong Court had power to impose imprisonment for a term of one year or more. The only effect of our decision is to give the appellants an outside chance of re-entry to the Country of their adoption whereas previously that door had unwittingly been bolted against them.

 

 

(W.F. Pickering)

 

Representation:

Stephen Ma (Henry Tung & Co.,) for appellants

G.W. Alderdice for Crown/Respondent