Chan Tam Chai v. The Queen

Case No.CACC 194/1980

Court

Court of Appeal

Date21 Mar 1980

Judge—

Case Document

100%

CACC000194/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 194 OF 1980

-----------------

BETWEEN
	Chan Tam Chai	Appellant
	AND
	The Queen	Respondent

-----------------

Coram: Addison, J.

Date of Judgment: 21 March 1980

-----------------

JUDGMENT

-----------------

Aiding and abetting illegal immigrants to remain in Hong Kong under section 38(1)(b) of Cap. 115 - appropriate sentence - two years' imprisonment upheld

1. The appellant pleaded guilty to aiding and abetting an illegal immigrant to remain in Hong Kong contrary to section 38(1)(b) of the Immigration Ordinance and was sentenced on the 13th February, 1980 by the learned magistrate sitting at South Kowloon to imprisonment for two years. He now appeals against sentence.

2. The facts of the case were these. On the 17th December 1979 two illegal immigrants, one of whom was named Chu Wa Yam, entered Hong Kong illegally. The appellant led that person to his farm in the New Territories, whilst his confederate, led the other there in company with many other illegal immigrants. When the police visited the appellant's farm in the early hours of the 9th December they found a total of 26 illegal immigrants in hiding.

3. The appellant was charged simply with aiding and abetting Chu Wa Yam to remain in Hong Kong.

4. The learned magistrate found it impossible to believe that the appellant would have harboured such a large number of illegal immigrants for at least two nights in his farm without at least the expectation of financial reward. He regarded the absence of proof of a demand for money as not necessarily a mitigating factor. He thought this was a systematic arrangement whereby immigrants were brought to his farm on at least a number of occasions.

5. Mr. Whitehead, who also appeared in the court below, has argued that the magistrate did not give sufficient weight to the fact that there was no evidence the appellant had sought or accepted monetary reward. One of the serious factors of this offence is not whether the accused has enriched himself or not but the financial burden the offender seeks to place on the community as a whole by aiding the presence of illegal immigrants in Hong Kong. In any event as the learned magistrate commented, it seems highly improbable the appellant would have run the risk of detection merely out of love.

6. Then it is said the learned magistrate when coming to sentence the appellant wrongly took into account the presence of 26 other illegal immi-grants in his farm when there was no evidence that he had aided and abetted those illegal immigrants to remain in the Colony.

7. It is true the appellant was not charged with aiding and abetting those illegal immigrants to remain in the Colony. He could have been but he was not. The presence of them with Chu Wa Yam reflected on the nature of the assistance being given by the appellant to Chu Wa Yam and it would have been a sound lack of judgment on the part of the learned magistrate had he dealt with the matter of Chu Wa Yam entirely in isolation, as Mr. Whitehead has suggested.

8. Mr. Whitehead has in the course of this appeal referred me to Tse Chan-lit & anr. v. R. (Criminal Appeal 590/78) and Lam Heung-wing v. R. (Criminal Appeal 651/79).

9. In the latter case Roberts C.J. said:

"	Yesterday, in Chau Yu-sang v. R. I heard an appeal against conviction and sentence for aiding and abetting the remaining of illegal immigrants. In that case, a man of twenty-five had assisted in the remaining of four illegal immigrants from China. There was no evidence that he had received any money for doing so. The magistrate imposed a sentence of twelve months' imprisonment, although the defendant had a clean record except for one very minor offence. I upheld that sentence.
	As I indicated to Mr. Lo, the attitude of courts as to the seriousness of particular kinds of offences changes. In my view the magistrate was entirely correct in taking into account the very serious nature, in present circumstances, of offences involving illegal immigrants. Rather than twelve months' imprisonment being reserved only for very serious cases of this kind it should, in my view, be the ordinary sentence for such cases, with serious ones attracting considerably more severe punishment."

10. In my opinion it cannot be said that the sentence imposed by the learned magistrate was wrong in principle or manifestly excessive. It was a just sentence. The appeal against sentence is dismissed.

	(F. Addison)
	Judge of the High Court

Representation:

Mr. Frank Wong, Counsel for Crown

Mr. Robert Whitehead (Samuel Soo & Co.) for Appellant