Attorney General v. Ng Kam-fuk

CAAR000004/1980

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

Date of Judgment: 15 May 1980

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JUDGMENT

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Cons, J.A.:

1. This is an application by the Crown for a review of a sentence which was passed by the magistrate at South Kowloon on 16th April this year.

2. The respondent had pleaded guilty to aiding and abetting an illegal immigrant to remain in the Colony. The immigrant was one of nine who had come from Macau on the night ferry. When it berthed in Hong Kong, those nine immigrants, instead of disembarking through the normal channels, slipped out from the seaward side of the vessel, under the cover of darkness, into a waiting wallah-wallah, which had been hired by the respondent especially for that purpose.

3. He took the nine immigrants to the Yaumati Typhoon Shelter where six of them made off on their own. However, it was part of his they were arrested by the police. Four hundred dollars cash was found upon the respondent, which was has payment for the part that he played in the operation.

4. When he pleaded guilty to the charge, he admitted the facts that have just been outlined.

5. The magistrate confiscated the $400 and imposed a sentence of six months' imprisonment, suspended for two years.

6. Mr. Sparrow, who appears now for the respondent, accepts, as he is bound to, that this court has frequently said, and repeated specifically in The Attorney General v. Tsang Sung⁽¹⁾, that except in the rarest of cases, the offence of aiding and abetting the remaining of an illegal immigrant is one which deserves an immediate custodial sentence.

7. The two matters on which the magistrate principally relied to suspend the sentence were that the respondent was aged 56, and that he had a clear record. Mr. Sparrow had drawn our attention to other matters: that the respondent did plead guilty; that he can be considered only a small fry in a larger pool; that he was charged in respect of only one illegal immigrant; and that $400 is a small amount of money.

8. We takes the view that these matters, even in their total, do not bring the case into the category of rate exceptions, and that the magistrate was wrong in principle to suspend the sentence.

9. The Crown further submits that imprisonment for six months is a manifestly inadequate penalty.

10. We have already enumerated in the previous case this morning the considerations that must be borne in mind when dealing with offences that involve illegal immigrants. It is not necessary to set them out again.

11. Mr. Sparrow has drawn our attention to cases in which sentences of six months or even less have been imposed for an offence like the present. But they are cases heard some time ago. Sentencing policy does not necessarily remain static, where appropriate it must be updated to accord with changing circumstances. In July last year it was suggested in the case of Reg. v. Lam Heung Wing⁽²⁾ that for an ordinary offence of this nature a sentence of twelve months' imprisonment would be appropriate, with serious offences attracting considerably more severe punishment. We think that is a correct approach.

12. Mr. Sparrow has drawn our attention to the personal circumstances of the respondent and submitted that they warrant some reduction of the ordinary punishment. We do not think there is anything unusual in them. The proper sentence upon the respondent ought to have been imprisonment for one year. As, however, this is a review upon the application of the Crown and the respondent is facing judgment for the second time, we shall, in accordance with normal practice, pass a lesser sentence of nine months.

13. For these reasons, the application is allowed and the sentence is changed to one of immediate imprisonment for nine months.

Representation:

J.M. Duffy (Legal Department) for the Applicant/Crown.

D.G. Sparrow (L.H. Kwan & Co.) for Respondent.

(1) 1977 H.K.L.R. 549

(2) Crim. App. 1979 No. 651