R. v. Li Hop Yeung

CACC000004/1992

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Coram: Hon. Sir Derek Cons, V.P., Kempster & Penlington, JJ.A.

Date of hearing: 9 April 1992

Date of delivery of judgment: 9 April 1992

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the court:

1. In December 1991 LI Hop Yeung ("the defendant") was arraigned upon an indictment containing a single count of "being a member of the crew of a ship which entered Hong Kong with unauthorised entrants on board", contrary to s. 37C(1) of the Immigration Ordinance, Cap. 115.

2. The offence was said to have taken place on14th December 1990. The unauthorised entrants ?commonly known as "illegal immigrants" - were found upon a vessel called the "Shiu Kwong Tow 109" when marine police stopped her off Tuen Mun. 21 immigrants were concealed in a special compartment below decks; four others were on deck, together with the captain, the defendant and another member of the crew.

3. The defendant pleaded not guilty to that indictment and a jury was empanelled before Wong, J. It was not disputed at the trial that the 25 people found on board were illegal immigrants, that they entered Hong Kong on board the ship in question and that the defendant was a member of the crew. Instead the defendant sought to bring himself within the statutory defence provided by subs. (2) of the section in question which provides that:

"a person who is a member of the crew of a ship other than the captain shall not be convicted of an offence under subs. (1) if he proves that prior to the commencement of the voyage on which the unauthorised entrants were brought to Hong Kong he did not know and had no reason to suspect that any unauthorised entrant would be carried on the ship."

4. In support of that defence the defendant gave evidence himself and called the captain of the ship. On the other hand there were also in evidence two cautioned statements which the defendant had made soon after arrest.The second of those statements contained a clear admission that the defendant knew of the presence of those persons in the concealed compartment one hour before the ship sailed from China. There was thus evidence before the jury from which they could deduce that the defence had not been made out.

5. There was an impeccable summing-up by Wong, J.; the jury came to an unanimous decision of guilty. The defendant now seeks leave to appeal against the conviction.

6. In his written grounds of appeal he reiterates in substance what he must have said to the jury and has repeated the same today. Further in his written grounds he suggests that the jury rushed into their decision. In fact they took about two hours. It was a very short simple case and that cannot be said to be rushing.

7. We cannot see any possible way in which the defendant's trial or the decision of the jury can be faulted and so the application must be refused.

Representation:

D. Saw, Crown Prosecutor for the respondent Applicant in person