The Queen v. Lam Tsan Fai and Others

CACC000470/1985

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

___________

BETWEEN

___________

Coram: Yang, J.A., Power and Penlington, JJ.

Date of hearing: 13th June 1986

Date of delivery of judgment: 13th June 1986

___________

JUDGMENT

___________

Penlington, J.

1. The applicants in this case each apppealed against conviction and sentence. They were granted legal aid for sentence only and each of them has now abandoned the appeal against conviction. We are therefore concerned only with the sentences.

2. They were convicted after trial on charges of manslaughter and assisting the passage of unauthorised entrants to Hong Kong.

Background

3. The applicants were in charge of a speed-boat which attempted to bring 24 young children into Hong Kong illegally. It was not a large speed boat, 27 feet. The speed boat was seen by the jury and the judge made some comments about it and there was clear evidence that it was grossly overcrowded. The voyage was attempted at night time and as the judge said to the jury it must have been anticipated by the applicants that they would have to evade the police and naval patrol craft which were in the area. It was put to the jury that in order to convict the appellants they would have to be satisfied that there was this risk contemplated by them and that they chose to take that risk. We are satisfied on the evidence that that was quite correct and that there must have been this anticipation.

4. There was in fact an interception and in the applicants' attempt to evade it, the speed-boat overturned, the occupants were thrown into the water, and four of the children drowned. The applicants apparently did nothing to help these children but just endeavoured to get away as best they could. The children were apparently not provided with any form of life saving equipment. The trial Judge in passing sentence said that the applicants had no regard whatever to the safety of these children and must have realised that carrying 24 of them in the boat over a long stretch of sea in the dark, at high speed, posed a very serious risk to their safety. He also said that after the children were thrown into sea, they turned their back on them and swam away so as to save their own skins.

5. The applicants were each sentenced to 15 years imprisonment for manslaughter and 10 years for assisting the passage of illegal immigrants.(concurrent) We think that these facts take this case outside the dangerous driving causing death category suggested by their counsel. This was the deliberate taking of a very serious risk with the lives of 24 young children. The applicants took that risk and the tragedy resulted.

6. The range of sentences for manslaughter is, as Mr. Mackay in his very full and helpful submission has said, very wide indeed. 15 years is certainly at the top of the bracket for such sentences. In the light of the unique circumstances in this case, however, it is not wrong in principle nor do we think that it is too severe.

7. So far as the other sentences are concerned, for assisting illegal immigrants into Hong Kong, again the sentences of 10 and 12 years are high but taking into account the particular circumstances of this case; we do not think that those sentences such that we should interfere.

8. The applications for leave to appeal against sentence are therefore refused.

Representation:

Mr G.A. Mackay (D.L.A.) for all applicants

Mr. Egan for Respondent/Crown Prosecutor