THE QUEEN v. CHEUNG CHUN LAM

HCMA 225/1987

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 225 of 1977

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Coram: The Hon Mr. Justice Barnes in Court

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistrates Court to a charge of illegally remaining in Hong Kong contrary to section 38(1)(b) of the immigration Ordinance. He was then 24 years old with a previous conviction in 1986 for using an identity card relating to another person for which he was sentenced to imprisonment for three months. The learned Magistrate sentenced him to imprisonment for 21 months.

2. In his reasons for sentence the learned magistrate said:-

“For a repeat offender such as this man, I am doing no more than following the guide lines provided to me by C.A. 1052/86, 796 and 797 and many others.”

3. Mr.Shane Cunningham, for the Appellant, submitted that the cases which he learned magistrate relied on do not support a sentence of imprisonment of more than 15 months.

4. In R. v. LAU Chung-kwan⁽¹⁾ the Court of Appeal quoted, with-out any hint of disapproval, the following observation in the statement of Findings of the learned Magistrate in that case:-

“The normal tariff for an illegal immigrant from China is 9 months to 15 months depending on the number of entries. This is aggravated in the case of using a Hong Kong identity Card.” (Emphasis supplied)

5.Lau's was an identity card case. The Court of Appeal expressly supported the reasoning of 0' Connor J. in R. v. LAM Shui-leung⁽²⁾, another identity card case. O'Connor J. had before him a table of statistics of sentences imposed in identity card cases during the previous 21 months. The table covered a range from 6 months to 15 months. Having considered that table"with caution" he said:-

"The circumstance of using another person's identity card in order to masquerade as a person entitled to be in Hong Kong is within the band of serious offences under [the statutory provisio] and on a plea of guilty a sentence of 15 months imprisonment would normally be appropriate."

In Lau, the Court of Appeal after referring to that passage went on to say:-

“We have dwelt at some length on the judgment of O'Connor J. ……because we in general agree with it and because he was endeavouring to give guidance to magistrates in the commonly occurring case where, as in the case now before us, an illegal immigrant is convicted on a plea of guilty of using the identity' card of another in circumstances where the defendant admits that, he is an illegal immigrant and that he bought the card in China before entering Hong Kong illega1ly.” (Emphasis supplied)

6. The other case to which the learned magistrate referred was R. v. LEE sun-shiu^(3). That was also a case in which the identity card aggravating circumstance was present. In that case the learned Chief Justice followed the guidelines of Lau.

7. Had this Appellant been convicted for the second time of an offence for which on first conviction the usual sentence is imprisonment for 15 months then it would have been right in principle for the learned magistrate to impose a sentence of imprisonment for a longer period. This Appellant, however, was convicted of the less serious offence for which the top of the range set by magistrates is 15 months. That tariff, far from being interfered with by the Court of Appeal, appears instead to have received its tacit approval. The guidelines cut by the cases to which the learned magistrate referred did not extend beyond 15 months. A sentence of imprisonment for 21 months is therefore wrong in principle in the absence of any factor warranting a sentence outside the tariff range. No such factor was present in this case so the appeal must be allowed.

8. I allow the appeal, quash the sentence and impose in lieu thereof a sentence of imprisonment for 15 months.