HKSAR v. Tam Kam Mun
Read the full judgment text of CACC 327/2001 on BabelCite. This Court of Appeal judgment was delivered on 22 April 2002 before Stuart-Moore Ag CJHC, Seagroatt J.
Criminal law – Immigration Ordinance Cap. 115 s.37D(1)(a) – assisting passage to Hong Kong of conveyance carrying unauthorized entrants – sentencing – starting point – distinction between crew member/lookout and captain or person in charge of vessel – aggravating features – unseaworthiness of vessel – previous similar conviction – repeat offender – discount for guilty plea – Newton hearing – whether sentencing judge erred in principle – Wong Yin-lung guidelines applied – sampan capsized near Cheung Chau with loss of two lives – applicant acted as lookout, paying reduced fee – previous 1996 conviction for similar offence and endangering safety at sea with sentence of 5 years 11 months – applicant released 6 months before instant offence – starting point should have been 4 years (crew member/lookout level) not 5 years (captain level) – unseaworthiness aggravation not attributable to lookout not in charge of vessel – Newton hearing into vessel's condition unnecessary – full one-third discount for guilty plea restored – one-year enhancement for previous conviction upheld as gravely aggravating – sentence reduced from 5 years 7 months to 3 years 4 months – Pang Wing – Ng Kit-yuen – Lo Shui-lun
Legal issues: Appropriate starting point for lookout versus person in charge of conveyance carrying unauthorized entrants · Attribution of unseaworthiness aggravation to a lookout · Reduction of guilty plea discount on account of unnecessary Newton hearing · Enhancement of sentence by one year for previous similar conviction
Outcome: Leave to appeal granted and, treating the hearing as the appeal, sentence reduced from five years and seven months to three years and four months.
Cited by 5 cases · Cites 3 cases
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CACC000327/2001 CACC 327/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 327 OF 2001 (ON APPEAL FROM DCCC 303 OF 2001) ______________
______________ Coram: Hon Stuart-Moore Ag CJHC and Seagroatt J in Court Date of Hearing: 9 April 2002 Date of Judgment: 22 April 2002 _______________ J U D G M E N T _______________ Stuart-Moore Ag CJHC (giving the judgment of the Court): Introduction 1.On 7 August 2001, the Applicant, aged 35, pleaded guilty in the District Court before Deputy Judge Candy to a single charge of assisting the passage to Hong Kong of a conveyance, namely a motorized sampan, which carried unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115. The judge took a starting point of seven years' imprisonment which he reduced by 20 per cent, instead of the usual one-third, to take into account the Applicant's conduct which he considered necessitated a Newton hearing on an issue which was ultimately decided against the Applicant. This hearing had caused the attendance of fourteen prosecution witnesses. In the result, a sentence of five years and seven months' imprisonment was imposed on the Applicant on 8 August 2001 against which he now seeks leave to appeal. The facts 2.The facts of the case were straightforward as well as tragic. The sampan in which the Applicant travelled to Hong Kong with four other illegal entrants measured 6.7 metres in length. It had an outboard motor. As an attempt was made to land at Cheung Chau, the vessel capsized in rough sea shortly before 7.00 a.m. on 25 February 2001. All the passengers in the boat were thrown into the water. Two of them apparently drowned although it was a week later before a body was found. This was dressed in clothes which matched the description of one of the missing passengers. The other body has never been found and that passenger is presumed to have drowned. 3.The sampan, as the incident leading to the apparent deaths of two of the illegal entrants suggests, was unsuitable for carrying passengers in the open sea. It carried no life jackets or fire-fighting equipment and a glance at the photographs reveals a small, open-topped boat with about ten water compartments apparently designed to keep fish inside. It was hardly the sort of boat which was intended for the open sea. 4.Following his arrest, the Applicant claimed that one of the unlawful entrants on board the boat had steered the vessel and that his role was to act merely as a lookout on the way to Hong Kong to warn of the presence of any police vessels. In return for this service, he said that he had paid a lower fee for his passage to Hong Kong than the other passengers. Previous conviction 5.Importantly, in the present context, the Applicant had a similar conviction recorded on 30 September 1996, when he gave a wholly different name, Ng Kwan-yiu. On that occasion, he was convicted after trial of being a member of the crew of a ship which, it transpires, was a speedboat which had entered Hong Kong with unauthorized entrants on board. He was also convicted on a second charge of endangering safety at sea where again no life jackets or fire-fighting equipment had been kept on board. In that case, the Applicant had steered the sampan into Hong Kong waters. When called upon to stop by a police launch, the Applicant had steered in such a way as to cause the sampan to collide with the police vessel. This caused all the passengers, including the Applicant, to fall into the water but fortunately everyone was rescued. Sentencing remarks 6.In passing sentence in the present case, when summarizing the general circumstances, the judge apparently accepted that the Applicant had not been responsible for steering the sampan. He said:
A little later, the judge went on to say:
The application 7.The passages cited from the judge's reasons for sentence were extensively criticised by Mr Wilson Chan, on the Applicant's behalf. It was his contention in his first ground of appeal that as the Applicant's account of being a 'lookout' had apparently been accepted, and as there was no evidence that the Applicant was in charge of the vessel or that he had taken any active part in the organization of the venture, the judge should have taken a basic starting point of four years' imprisonment, rather than five years, in accordance with what is set out in R v Wong Yin-lung [1995] 1 HKCLR 151 at 153. Furthermore, Mr Chan submitted that it was wrong to have increased the starting point by a year on account of the "unseaworthiness" of the vessel when the Applicant's role was limited to that of a 'lookout'. 8.Mr Cheung Wai-sun, on the Respondent's behalf, very properly pointed out that the whole weight of earlier authority, since Wong Yin-lung (above) seems generally to favour four years as a suitable starting point after trial for a mere crew member of a vessel engaged in assisting the passage of unauthorized entrants, with five years reserved as the starting point for the captain or person in charge of a vessel. Whilst the Applicant was not charged with being a crew member under section 37C, it is plain that as a 'lookout', the Applicant's position was analogous to that of a crew member. Furthermore, his offence of assisting the passage of a conveyance carrying unauthorized entrants under section 37D carried precisely the same penalties. 9.The judge in the present case made no direct reference to Wong Yin-hung. He had, however, as we have said already, referred to R v Pang Wing, CACC 145/1995 (unreported), which was concerned, as the instant case is, with a section 37D(1)(a) offence. The applicant in that case was seen steering an unlit sampan. He was taking two unauthorized entrants to Hong Kong. These three men were the only people on board. The judgment of the Court of Appeal made reference to Wong Yin-lung when stating that:
10.The reference in Pang Wing to five years as an appropriate starting point seems, although it might perhaps have been more clearly expressed, to refer to the applicant in that case being not only the steersman of the boat but as being in effective charge of the boat. The same situation had also arisen in R v Lo Shui-lun, CACC 109/1995 where the applicant in that case had been steering a motorised sampan with two unauthorised entrants on board. It is also to be observed that in R v Ng Kit-yuen [1992] 1 HKCLR 170, on which the judge in the instant case had apparently relied as "a sentencing guideline for this type of case", the applicant was the captain of a vessel with eight crew members and thirteen illegal immigrants on board. 11.In the present case, there was every indication, as both counsel to these proceedings accepted, that as all the passengers, including the Applicant, on the small boat were apparently intending to land and stay in Hong Kong, the boat, having served its purpose, would probably have been abandoned. However, it remains far from clear who, if anyone, was "in charge" of the boat on which the Applicant had been a lookout. The judge was obviously alive to this issue, and when counsel in the court below suggested at one stage during mitigation that the Applicant was not a permanent lookout, the judge remarked:
12.In all the circumstances, not without considerable hesitation, it has seemed to us that the judge should more properly, in accordance with prior authority, have selected a four-year starting point rather than taking the higher basic starting point of five years reserved for those in charge of the conveyance bringing unlawful entrants into Hong Kong. 13.In the event that we might reach such a conclusion, Mr Cheung conceded that the Applicant, not having been established to be the person in charge, could not be held responsible for the unseaworthy state of the boat for which the judge had added a further year to the starting point after conducting a Newton hearing into its condition. Such an enquiry was, Mr Cheung rightly also conceded, unnecessary in the circumstances. This concession had, it was accepted, a further consequence, namely that if the Newton enquiry was not necessary, then it would not be right for the Applicant to be penalised by a reduction of the discount he would normally have received for his plea of guilty. 14.We turn lastly to the Applicant's previous conviction which Mr Chan submitted had been wrongly used by the judge to enhance the Applicant's sentence by an additional year. 15.We are bound to say that we consider this to have been a gravely aggravating factor in the circumstances, not merely because the earlier sentence of five years and eleven months which the Applicant had served had plainly had no deterrent effect. It is to be observed that coupled to the sentence for being a crew member, entering Hong Kong waters with unauthorized entrants on board, he had received a concurrent sentence of twelve months for the offence of endangering safety at sea. Perhaps more importantly in the present context, therefore, the Applicant can be taken as someone who was particularly well aware of the dangers of this kind of operation. In the result, one illegal entrant has almost certainly been shown to have drowned and another is missing, presumed drowned. 16.This was a serious case of its kind and we are not inclined to think that the judge erred in any way in his approach to the Applicant's previous history or its effect upon the sentence in the instant case. The Applicant had only been released six months earlier from that sentence and both cases involved very considerable dangers which must have been obvious to the Applicant, regardless of his knowledge of the actual condition of the very small boat in the instant case. In fact, it is perhaps no exaggeration to say that no one could have known better than the Applicant about the perils of such a venture as this. He had not only done this before, he had actually seen the small boat on his earlier unauthorized venture, empty its passengers, including himself, into the sea. Conclusion 17.Bearing in mind all the circumstances of this case, we have considerable sympathy for the conclusions reached by the judge who had plainly given a great deal of thought to the sentence he should properly impose. However, for the reasons we have given, we consider that the appropriate starting point, on the facts as they were accepted by the judge, was four years' imprisonment enhanced by twelve months, to take into account the aggravation of the offence, for sentencing purposes, of the Applicant's previous record. Furthermore, as it appears that the judge accepted that the Applicant was not "in charge" of the boat, we do not consider that the Applicant should have been held to have had responsibility for its "unseaworthiness" or to have been subject to a lower discount on his plea arising from the Newton hearing. The application of these considerations would leave the Applicant with a sentence of three years and four months to serve. 18.Accordingly, with some reluctance, we will grant leave and treating the hearing as the appeal, we reduce the Applicant's present sentence of five years and seven months to three years and four months.
Representation: Mr Cheung Wai-sun, DPGC and Ms Polly Wan, SGC, of the Department of Justice, for the Respondent. Mr Wilson Chan, instructed by the Director of Legal Aid, for the Applicant. |
Cases cited in this judgment