The Attorney General v. Cheng Chi-ming and Another

CAAR000002/1981

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Coram: McMullin, V.-P., Li, J.A. & Addison, J.

Date of Judgment: 6th August, 1981

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JUDGMENT

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McMullin, V.-P.:

1. This is an application by the Attorney General for the review of sentence. The two respondents were convicted by a jury of an offence under section 37C of the Immigration Ordinance. The first respondent was convicted under paragraph (b) of that subsection the reason being that he was the owner of the vessel involved in the offence. The second respondent was convicted under paragraph (a) as a crew member. The offence was committed on the 11th of May 1980 when the fishing vessel owned by the first respondent was intercepted by police on its way from Macau and on board there were found to be some thirty unauthorized entrants who were being transported to Hong Kong. The respondents at the trial put forward a defence of duress which was rejected by the jury. A sentence of four years' imprisonment was imposed upon the owner of the vessel, the first respondent, and a sentence of three years upon the second respondent. The two respondents had made confessional statements after arrest and the first respondent admitted to the offence and stated that he had used his fishing vessel because he owed a large sum of money upon it having purchased it upon mortgage from the Agriculture & Fisheries Department. He said that he had been tempted by a person named Wong to carry these persons and on the promise that such ventures would net him up to $100,000 per trip. His case, however, is distinguished in one respect from the case of the respondent in Review 14 of 1980 in which, in increasing sentence, the court came to the conclusion that the case was as they said a serious case being a planned excursion purely for gain for enormous profits and the purchase of the junk was intended for the sole purpose of operating as a snake boat. There is no evidence in the present case that the first respondent was not in possession of a vessel normally used for fishing and we cannot assume therefore that in engaging in the venture in which he was caught that he was in precisely the position which aggravated the circumstances of the respondent in the previous case. In all such applications for review, as Mr. Alderdice for the Crown concedes, when the Crown moves on the basis that the sentence is manifestly inadequate (which is the basis of the review in the present case) it follows the principles enunciated at the outset of the institution of all such proceedings in 1972 and announced by the court in The Attorney General v. LAM Kam-tai⁽¹⁾. Three questions, it is said, should be put by the court to itself: Was the sentence so manifestly inadequate or so grossly excessive that it leaves one with a sense of shock or outrage? Secondly was the punishment so grossly excessive or so manifestly inadequate in the circumstances that no judge or magistrate exercising a proper judicial discretion ought to have imposed it? Thirdly is the sentence out of all proportion to the gravity of the offence? In the course of his painstaking and able address Mr. Alderdice conceded that in respect of the second respondent it would be difficult for him to say that that degree of shock and outrage could be shown by the circumstances on the record. He took that view because the second respondent was in any event not the owner of the vessel and stood to gain on his own statement very considerably less than would have been gained by his relative, the first respondent. So far as the financial rewards for that journey are concerned they would have been considerable. For each of the illegal immigrants the first respondent on his own statement was likely to have been paid $6,500. Evidence given in court by some of the immigrants suggested that that figure would have been considerably higher but in all events whichever figure is taken it would have been a considerable amount of money.

2. Mr. Alderdice has rightly stressed the fact that this form of trade is one which has to be viewed with concern by the community. He points out that although there has been a considerable drop in the number of illegal immigrants in the first few months of this year compared with the total number who made their way to this territory in 1980 this has been due principally to a very large effort on the part of the authorities in combination with the authorities in China to curb the trade and also of course there is the factor of the abolition of what was formerly termed the 'touch base' policy. The problem still persists and therefore the court, in counsel's submission, in safeguarding the interests of the public should be able to say in a case such as this that the judge must have proceeded upon a wrong principle and imposed a manifestly inadequate sentence when, in the case of the first respondent at least, it can be said to be about one-third below the sentences approved by the courts in similar cases over the last year or so. It is true that sentences of five and six years have been imposed in cases taken under 370 in 1979 and 1980 and in Application for Review 14 of 1980 upon which counsel principally relies a sentence of three years was increased to five years that being the discounted version of what was thought to have been the appropriate sentence of six years.

3. The court in Review 14 of 1980 distinguished between what it termed 'medium serious cases' and 'serious cases'. There were two Reviews before the court on that occasion. The other was 13 of 1980. The court held that the latter fell into the category of medium serious whereas Review 14 fell into the category of a serious case.

4. It will not always be easy to tread a clear line in making that distinction. In so far as the present case is concerned, there is the one difference in the circumstances to which I have already pointed distinguishing this case from the case of the respondent in Review 14. That is perhaps a minor factor to be taken into account in considering the present application but we are satisfied that the main point which should be made is that confronted with a sentence of four years for this offence as against what might be regarded as a tariff sentence of six years and notwithstanding the serious nature of the offence and the need to protect the public, we cannot say that we are afflicted with that degree of outrage which would require us to interfere. It is conceded that in the case of the second respondent in any event it would be difficult to sustain the suggestion that any such sense of outrage it has been made manifest. For these reasons the application will be refused.

Representation:

G. Alderdice, for the Attorney General, the appellant

Bernacchi, Q.C. & Stephen Chow, instructed by (Director of Legal Aid) for the respondents

(1) H.K.L.R. 1972 at page 325