The Queen v. Law Chuen Fook

HCMA000593/1988

BETWEEN

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Coram: Hon. Cons, V.-P., Fuad, V.-P. & Mortimer, J.

Date of hearing: 19th August, 1988.

Date of delivery of judgment: 19th August, 1988.

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. On the 13th May this year, Law Chuen Fook pleaded guilty in the South Kowloon Magistrate's Court 2 charges of aiding and abetting the remaining in Hong Kong of a person who had landed unlawfully, contrary to Section 38(1)(b) of the Immigration Ordinance Cap. 115.

2. Law was the responsible person in charge of a lighter, the Hoi Fat No. 2, which belongs to the Fat Kee Transportation Company and is apparently based on the Yaumati Typhoon Shelter. At least it was there that Law was arrested on board the lighter on the 7th May, together with the 2 illegal. immigrants who were named in the 2 charges.

3. It is accented that Law engaged the immigrants as casual workers on the lighter on the 1st day of the month. They were to be given a monthly salary of HK$5,000 together, with board and lodging.

4. At the time that he engaged them. Law did not ask for their identity documents, but on the 5th day of the month they admitted to him that they were in fact illegal Immigrants from China and did not have any identity cards. Nevertheless Law continued to employ them until the time that all were arrested.

5. Before passing sentence in South Kowloon Magistracy Mr. Upham, the Magistrate in question, called for a report from the probation service, not as he pointed out at the time, with a view to putting Law on probation, but to assist him in deciding what should be the proper sentence. The report in due course showed that Mr. Law had, in his 7 years in Hong Kong, led a hardworking decent life, and acted as a responsible husband and father to his wife and 2 young children who have at all times lived in Macau and will of course, as all families do in similar circumstances, now be suffering the consequences of his conduct.

6. The Magistrate imposed concurrent sentences of 12 months on each of the charges and subsequently set out why in a full and carefully prepared Reasons for Sentence. Appeal against the sentences was lodged in the High Court where, on the 4th of this month, Hopkinson J. reserved the matter for the consideration of this Court under Section 118(1)(d) of the Magistrates Ordinance, Cap. 227.

7. In the course of the submissions this morning we have been referred to several cases which deal with this offence, cases which the Magistrate himself considered. We have heard skilful argument as to their exact interpretation, but we have to say at once that the cases were all decided sometime ago, and as this Court observed in one of them, sentencing policy is not static. It needs to he reconsidered from time to time.

8. Very recently in So Man King⁽¹⁾ this Court reconsidered the situation with regard to offences committed by illegal immigrants themselves. In so far as they are concerned, the circumstances with regard to their presence in Hong Kong are unlikely to vary greatly from one immigrant to another. Nor, generally speaking, are illegal immigrants likely to have much to offer by way of mitigation. The situation is such that guidelines from this Court can play a most useful part in ensuring consistency of sentence and preventing disparities that would otherwise become immediately obvious.

9. 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.

10. 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⁽²⁾, 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.

11. 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.

12. Mr. Macrae, for the Appellant today, has addressed us with his usual skill and eloquence on matters that should influence our consideration in the present instance, but even sole cannot say that the sentences of 12 months concurrent imposed by the Magistrate below were manifestly excessive.

13. The appeal is therefore dismissed.

(1) Magistracy Appeal No. 408/88, 10 August 1988

(2) A.G. v. Tsang Sung [1977] H.K.L.R. 549

Representation:

Andrew Macrae (M/s K.Y. Woo & Co.) for the Appellant

G.J. Lugar-Mawson, Crown Prosecutor for the Respondent