The Queen v. Fan Ming Suen

HCMA001700/1990

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1700 OF 1990

_____________

BETWEEN

_________________

Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 11 April 1991

Data of Delivery of Judgment: 11 April 1991

------------------

JUDGMENT

------------------

1. The appellant pleaded guilty in the magistrates court to a charge of aiding and abetting the remaining in Hong Kong of an illegal immigrant. The magistrate sentences him to imprisonment for 12 months.

2. In sentencing him, the magistrate said that he took into account the following matters: -

and the fact that the illegal immigrant concerned was the appellant's cousin.

3. On the admitted facts, the illegal immigrant had been accommodated by the appellant for a period of about a month before the appellant's arrest and had been employed by the appellant in the appellant's medicine shop. The employment in money terms was worth $2,000.00 per month to the illegal immigrant.

4. The appellant was unrepresented in the court below but is represented by 61r. Michael Ko today. On his behalf, Mr. Ko contends that the sentence of imprisonment of 12 months is manifestly excessive and too severe having regard to the circumstances, namely, the relationship of the illegal immigrant to the appellant and one matter which I have not mention, namely that in mitigation, the appellant had said that he had employed and accommodated the illegal immirgant because he felt under a moral obligation to hits because of some favours done in the past for the appellant by the illegal immigrant s father.

5. Mr. Ko s submission that the relationship and this moral obligation were matters which should have peen given more weight than they were given by the learned magistrate. He also submits that the starting point of 18 months was too high. In support of his submission he has referred me to a number of decisions 5 of them being single judge decisions and 1 being a decision of the Court of Appeal In some of the single judge decisions it is clear that the sentences very much below the sentence imposed here were, set by the appellate court but the reasons for the lower sentences were apparent from the facts of the particular cases except one, namely the case of The Queen v. Wong Kwai ([1989] 2 HKLR at p. 69).

6. The important authority however, I think is The Queen v. Law Chuen Fook ([1939] 1 HKLR 164) being a decision of the Court of Appeal. In that case, the Court at p. 165 said this: "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 undermining the policy behind the sentences imposed for the principal offenders, i e. 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 immgrant 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".

7. Later on, the court went on to say: "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 tile immigrants themselves.".

8. In view of that statement I do not think that the magistrate's decision to fix a starting point of 16 months was wrong. The magistrate has indicated that he took into account the matters which Mr Ko was urged upon me this morning, and in taking them into account, he has given the appellant a generous discount in arriving at a sentence of imprisonment for 12 months.

9. In view of what was said by the Court of Appeal in Law Chuen Fook and in view of the general allowance which the magistrate gave in respect of the mitigating facts in this case I find myself unable to say that the sentence in this Case was manifestly excessive. I find myself unable to say that the sentence was wrong.

10. I must therefore dismiss the appeal.

Representation:

Mr. G.E. Forlin S.C.C. for Crown

Mr. Michael Ko (Director of Legal Aia) for Appellant