Chin Wing and Another v. The Queen

CACC000202/1982

BETWEEN

________

Coram: Hon. Mcliullin, V.-P., Li and Silke, JJ.A.

Date: 9 November 1982

__________

JUDGMENT

__________

McMullin, V.-P.:

1. The two Applicants in this case were originally before this Court on 8th July this year. They were then unrepresented and each had put in Grounds of Appeal with which they hope to support their application. They had been convicted in the District Court for offences under the Immigration Ordinance. The first Applicant pleaded guilty to a charge under s.37C, charging him with being a member of a crew of a vessel carrying illegal immigrants. The second Applicant pleaded guilty to a charge under 37D, that is to say arranging for the entrance of illegal immigrants to Hong Kong. The Grounds of Application however clearly disclosed that both Applicants were inclined to dispute the validity of their convictions. So far as the second Applicant was concerned it seemed that there was little substance in that contention. But we were at the time a little exercised about the case of the first Applicant since on what was then before us there was a possibility that he had not been involved in the affair in such a way as to have constituted him a member of the crew in the sense required by the Ordinance. It was for that reason that we adjourned the case and addressed the Director of Legal Aid upon the matter, explaining the nature of our misgivings.

2. Subsequently Legal Aid was extended to both Applicants although our concern was principally with the first Applicant. This afternoon Mr. Aiken has helpfully appeared before us, instructed on behalf of both Applicants. The doubts we originally entertained concerning the first Applicant have been resolved. We are satisfied that Mr. Aiken has fairly put the matter before us and that the first Applicant when arraigned before the Court did plead guilty knowingly to the charge and was not pleading in ignorance of the nature of the law but was in fact affirming that he had been a member of the crew. His replies when the facts were read out were graduated from the initial response whereby he said that he had been merely following others to Hong Kong and was told to do it, to a further statement where he said he admitted working on board the ship as a cook, and finally - when the matter was put to him again - to a simple admission of guilt. We are therefore no longer concerned with the possibility that the conviction may have been entered without substantial evidence.

3. Mr. Aiken then addressed us on the question of sentence. He has brought to our attention the decision of this Court in Application for Review No. 13 of 1980 in which my brother Silke reviewed a number of previous cases, including both appeals and applications for review, concerning offences under this Ordinance. We are satisfied that a distinction is to be made between sentences imposed before the abolition of the touch-base policy and those imposed after and that cases decided before that date are not necessarily a very good guide to present policy.

4. What Mr. Aiken says is that the present case having regard to the character or circumstances of the two Applicants make it a case of the kind described by Mr. Justice Silke as "a medium serious case". In using that phrase Mr. Justice Silke was making reference to application for review No. 3 of 1980, a case in which two men of similar ages to the present applicants were involved and were convicted of carrying 16 non-authorised entrants into the Colony. The number in the present case is 11 such immigrants. The learned Chief Justice delivered the judgment of the Court of Appeal and in the event a sentence of two years' imprisonment was substituted for original sentences of six months and nine months.

5. The first Applicant here is 57 years of age and the second is 51. The part taken in the affair by the first Applicant is clearly of lesser gravity than that taken by the second.

6. The second Applicant was obviously the contact man in China to whom a number of the immigrants were introduced by other persons. He made arrangements for their being collected and transported to the coast where they were put in a boat and then taken to Hong Kong where the vessel was arrested. Both of the Applicants were on board the vessel at the time.

7. The part played by the first Applicant was far from clear, we merely have his statement that he was the cook on that vessel but we have no detailed information as to the role he played, apart from that occupation, and none of the persons who gave evidence - there were several illegal immigrant witnesses in the case - seem to have referred to him taking any active part on the course of the journey.

8. We think that in all the circumstances we are justified in regarding this case as falling within the medium-serious category. For the sentence of four years and six months imposed upon the first Applicant we will substitute a sentence of 2 years.

9. As regards the second Applicant, we take into account ahead-nisericordiam features brought to our attention by Mr. Aiken which include the remarkable fact that this Applicant had spent some 12 years in China in prison for an offence of a political character. Although he engaged, in the present instance, in an activity of a kind which has been increasingly gravely regarded in the Courts since 1979, he cannot be regarded as being a mastermind of the kind which prompted the Court in earlier cases (some of which have been referred to in this Court) to impose sentences of five and six years.

10. In all the circumstances we think that the proper sentence in his case should be three years' imprisonment and we so order.

Representation:

N. Aiken (Lung, Ng & Lie) assigned for both Appellants.

J. Duffy for Respondent/Crown.