THE QUEEN v. LUNG HON WAH AND OTHERS

THE QUEEN v. LUNG HON WAH AND OTHERS

Because the government introduced a new prosecution policy targeting group arrivals without publicizing it and long-standing executive conduct had created a reasonable expectation of repatriation for first-time entrants, the court reduced the standard 15 month sentence to six months for first-time illegal entrants arriving in groups, and held that the mitigation applies equally to attempted landings.

Citation
THE QUEEN v. LUNG HON WAH AND OTHERS
Parties
Respondent: THE QUEEN; Appellants: Lung Hon-wah and 7 others
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 May 1990
Case Number
HCMA144/1990
Procedural Posture
Magistracy Criminal Appeal / Judgment on Appeal
Outcome
Appeal allowed in part; sentences reduced for appellants who appealed; advice given to others to seek leave to appeal out of time.
Legal Topics
Illegal Entry, Attempted Landing, Sentencing Guideline, Prosecutorial Policy, Repatriation, Change of Policy, Publicity of Executive Policy
Source Language
EN
Immigration Criminal Law Sentencing Administrative Law Illegal Entry Attempted Landing Sentencing Guideline Prosecutorial Policy +3 more

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Parties

THE QUEEN

Respondent

Lung Hon-wah and 7 others

Appellants

Procedural Posture

Magistracy Criminal Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether a court should reduce a standard 15 month sentence where the executive introduced a new prosecution policy without publicity
  2. 2 Whether long-standing executive practice of not prosecuting first-time illegal entrants is a mitigating factor in sentencing
  3. 3 Whether the unpublicized change in policy applies to attempted landings as well as completed offences

Ratio Decidendi

Because the government introduced a new prosecution policy targeting group arrivals without publicizing it and long-standing executive conduct had created a reasonable expectation of repatriation for first-time entrants, the court reduced the standard 15 month sentence to six months for first-time illegal entrants arriving in groups, and held that the mitigation applies equally to attempted landings.

Court Disposition

Appeal allowed in part; sentences reduced for appellants who appealed; advice given to others to seek leave to appeal out of time.

Orders

  • Reduce sentence of each appellant who appealed from 15 months' imprisonment to six months' imprisonment.
  • Maintain reduced sentences already imposed on juveniles as per trial court orders (unchanged).