Attorney Gerneral v. Leung Ming and Another

CAAR000003/1980

Coram: Roberts, C.J., Cons, J.A. & Yang, J.

Date of Judgment: 15 May 1980

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DECISION

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Roberts, C.J. -

1. Leave was given to the Attorney General to apply to this court for a review of the sentences passed on the 3rd April by a magistrate sitting at South Kowloon.

2. The two respondents, Leung Ming, aged 58, and Leung Tai, aged 61, pleaded guilty to the offence of carrying unauthorized entrants, contrary to section 37C(1) (a) of the Immigration Ordinance. This is a recently enacted section which carries a maximum penalty of life imprisonment or a fine of one million dollars on conviction on indictment or of three years' imprisonment and a fine of one hundred thousand dollars on summary conviction.

3. According to the summary of facts which was put before the magistrate and agreed by the respondents, the respondents brought a motorized sampan, carrying sixteen illegal immigrants, from Macau to Hong Kong on the 17th March of this year.

4. The plan was that, on arrival in Hong Kong waters, the respondents would signal confederates on the shore. When they received an agreed signal in return, the illegal immigrants would be landed in the Tuen Mun area.

5. However, during the evening of the 18th March, the sampan was intercepted in Hong Kong waters by a Royal Marine craft. When Marines boarded the sampan, they found the two respondents and 16 illegal immigrants.

6. There was no evidence before the magistrate as to how much the respondents were to be paid for their services. The magistrate, however, inferred that, in view of the number of passengers, the respondents would have received a substantial amount for their services.

7. When passing sentence, the magistrate observed that the only mitigating factors were their pleas of guilty and the fact that they appeared to be old and frail. Both have long records of petty crime.

8. The first respondent has thirty-three previous convictions, almost all of them are for possession of opium or other dangerous drugs or the smoking of them. These offences cover a period of over twenty years and include six short sentences of imprisonment.

9. The second respondent has twenty-six previous convictions, extending over a similar period. Again, the majority of these are drug offences, though he was also convicted of several offences of theft. He has served a considerable number of short sentences of imprisonment.

10. We do not think that the difference in the records of the two respondents is such that a differentiation in the sentences which should be imposed upon them for this offence is justified.

11. We agree with the submission of counsel for the Crown that, in principle, an immediate custodial sentence is the correct one for offences of this nature. The remaining question is whether the sentences imposed were manifestly inadequate.

12. In LAM Heung Wing v. Reg.⁽¹⁾, which was an appeal from a magistrate, the Chief Justice noted that the attitude of the courts as to the seriousness of a particular offence might vary, to take account of changing pressures and circumstances. He went on to express the view that a magistrate would be correct to take into account the very serious nature, in present conditions in Hong Kong, of offences involving illegal immigrants and suggested that a sentence of twelve months' imprisonment should be the ordinary one in such cases, with serious instances attracting higher sentences.

13. Reference was made in the judgment in LAM Heung Wing⁽¹⁾ to CHAU Yu Sang v. Reg.⁽²⁾, in which a man of 25 had assisted four illegal immigrants, who had already entered from China, to remain in Hong Kong. That defendant had a clean record, there was no evidence that he had received payment, and he was sentenced to twelve months' imprisonment for aiding and abetting illegal immigrants contrary to section 38(1)(a) of the Immigration Ordinance. This offence carries a maximum penalty of three years' imprisonment or $5,000, much less than that provided under the section 37C(1).

14. Any member of the Hong Kong community must realize the serious effects which large scale illegal immigration has had in the past few years on many aspects of Hong Kong life. We have been faced with a flood of refugees and illegal immigrants from many parts of Asia. It has been necessary to take stringent measures in an attempt to restrict and to curb this flow. It must be obvious to anybody that every illegal immigrant adds further to the immense pressures generated by the presence of over five million people in a very small area.

15. In present circumstances, illegal immigrants pose a substantial threat to the stability and prosperity of the community. And those who take part, as the respondents did, in the smuggling of illegal immigrants for gain, must expect the courts to regard such conduct as deserving of severe punishment.

16. This seems to us to be a serious case of its kind. It was a deliberately planned expedition for the introduction of illegal immigrants into Hong Kong for gain. We believe that the sentences imposed by the magistrate were manifestly inadequate.

17. We therefore grant the application of the Crown for a review of the sentences imposed, quash the sentences of six months and nine months imposed on the 1st and 2nd respondents respectively, and substitute, in each case, a sentence of two years' imprisonment.

Representation:

Duffy for the Crown/Applicant

Both Respondents in person

(1) Crim. App. No. 651/79

(2) Crim. App. No. 615/79