The Queen v. To Yee-sang

HCMA000589/1989

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H E A D N O T E

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AIDING AND ABETTING ILLEGAL IMMIGRANT TO REMAIN - APPELLANT SHELTERING GIRLFRIEND - STRONG MITIGATING FACTOR - SENTENCE OF NINE MONTHS REDUCED TO PERMIT RELEASE AFTER TWO MONTHS.

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BETWEEN

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Coram: Hon. Bewley J. in Court

Date of hearing: 7 June 1989

Date of delivery of judgment: 7 June 1989

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J U D G M E N T

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1. The appellant pleaded guilty to aiding and abetting an illegal immigrant to remain in Hong Kong unlawfully without the authority of the Director of Immigration and was sentenced to nine months imprisonment. The illegal immigrant herself, Miss Lau Sin-yu, was sentenced to 12 months for using an identity card relating to another person.

2. Miss Lau had come to Hong Kong eight or nine months before her arrest in order to look for her parents. She met the appellant in a restaurant and they became friends. Later she went to live with him. In due course the appellant became aware of her status, but she was in ill health and without a job, so he supported her.

3. Acting on information, the police raided the appellant's room and found Miss Lau, who produced the identity card, which she had bought in China. Later the appellant arrived and claimed to be her boyfriend.

4. In R. v. Law Chuen Fook M.A. 593/88 Cons, V.-P., delivering the judgment of the Court of Appeal, said :-

"On the other hand, the circumstances which give rise to a charge of aiding and abetting may vary, tremendously. Towards one extreme may well be, for example, the daughter who conceals her aged and sick mother so that the mother may see out the end of her days in the comfort and love of her own family. At the other perhaps we may find the greedy contractor who engages a large number of immigrant workmen at wages considerably below the going market rate.

But all who are guilty of the offence of aiding and abetting have one thing in common. To some extent, at least, they encourage yet others to seek refuge here, thereby underminding the policy behind the sentences imposed for the principal offenders, that is, to deter would be illegal immigrants from putting their intentions into practice. This is particularly so where opportunities for employment are offered, for it is the hope of substantially higher wages which at present is one of the principal attractions. If a would-be illegal immigrant knew that his hope of employment was unlikely to be fulfilled, he would be much less inclined to take the gamble of smuggling himself here. Therefore although we agree with the view taken in the first of the authorities to which we were referred this morning where the then Chief Justice held that except in the rarest cases the offence was one which deserved an immediate custodial sentence (A.G. v. Tsang Sung [1977] H.K.L.R. 549), we feel it inappropriate to suggest any particular period of imprisonment as being in general suitable for those convicted of aiding and abetting, save to say that those who offer opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed upon the immigrants themselves.

Of course in deciding what is a proper sentence in the individual case, the Court will have regard to the usual mitigating factors and any that are particularly appropriate to that case."

5. The appellant has one previous conviction for conspiracy to rob. The magistrate in his Reasons for Sentence recognises that he gave the appellant insufficient credit for his guilty plea and considers that the proper sentence is six months.

6. There are strong mitigating factors. It is asking a lot of a young man to expect him to kick his girlfriend out or to report her to the police.

The appellant has served nearly two months of his sentence. I think justice will be served if I reduce it to such term as will permit his immediate release.

7. The appeal is allowed accordingly.

Representation:

Mr G. Alderdice (Tang, Wong & Cheung) for Appellant

Mr Cagney, for Crown.