HKSAR v. Lam Shui Tung and Another

CACC000429/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 429
(Criminal)

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Coram: Hon. Nazareth, V.-P., Liu and Leong, JJ.A. in Court

Date of hearing: 8 January 1998

Date of delivery of judgment: 12 February 1998

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The 1st Applicant Lam Shui Tung and the 2nd Applicant Lam Sau Pui were jointly charged with another defendant in the District Court of being a member of the crew of a ship which entered Hong Kong with unauthorised entrants on board. The two Applicants were convicted after a trial and were each sentenced to 3 years and 6 months' imprisonment. They originally sought leave to appeal against conviction and sentence. But at the hearing, the 2nd Applicant abandoned his applications altogether, both for leave to appeal against conviction and sentence while the 1st Applicant abandoned his application for leave to appeal against sentence. The applications of the 2nd Applicant were accordingly dismissed. The outstanding matter is the 1st Applicant's application for leave to appeal against conviction.

2. The prosecution case is simple. Police officers on board two police inflatable craft were patrolling the waters off the coast of Lau Fau Shan. Acting on radar information that there was a suspicious vessel about 100 metres in front of them, they proceeded ahead and intercepted a sampan with 4 men and a pregnant woman on board. PW1 Sgt 20041 saw the 2nd Applicant Lam Sau Pui steering the sampan while the 1st Applicant Lam Shui Tung was sitting at the bow. The other persons were sitting one after the other in a line in front of the 2nd Applicant. On enquiry by PW1, no one could produce a Hong Kong identity card.

3. PW3 PC53823 was on the other inflatable and he spoke to the 1st Applicant who was at the bow of the sampan. The 1st Applicant said "I was conveying some people here with two of my brothers from the same native village". He also said that he did not know what was the reward for that and he pointed to the 2nd Applicant as the person in charge. PW3 then arrested the 1st Applicant.

4. The 1st Applicant gave evidence to the effect that he was not a member of the crew of the sampan. He was in fact being conveyed to Hong Kong by the other defendant who gave evidence in support. He denied having made any admission to the police officer.

5. The prosecution evidence that the sampan was carrying unauthorised entrants was not challenged.

6. The trial judge accepted the evidence of the police officers and rejected the 1st Applicant's version of events. Relying on the officers' evidence and the 1st Applicant's admission, he convicted the 1st Applicant of the offence as charged.

7. There is only one ground in the 1st Applicant's perfected grounds of appeal, i.e. there is insufficient evidence for the judge to come to the conclusion that the 1st Applicant was a member of the crew of the sampan.

8. Mr. Walter Lau for the 1st Applicant submits that the judge found the 1st Applicant was sitting at the bow and was not steering the sampan. The judge also found it surprising that such a small boat would require a crew of three members. Mr. Lau submits that the 1st Applicant's admission could not have meant that he was there for manning or assisting in manning the sampan. Putting it at the highest, so counsel argues, the 1st Applicant only admitted that he was an escort or courier in taking the illegal entrants to Hong Kong or he was organising them to come to Hong Kong. For that, it is submitted, the 1st Applicant may be guilty of an offence of arranging passage to Hong Kong of unauthorised entrants under section 37D of the Immigration Ordinance but he could not be guilty of the offence charged. That it was possible for the 1st Applicant to assist in navigating or unloading the passengers on reaching land would seem to be speculative, and it is contended that there was no evidence to support the judge's finding of the 1st Applicant being a crew member within the meaning of the Immigration Ordinance.

9. "Crew" is defined in section 2 of the Immigration Ordinance Cap. 115 in relation to a ship or aircraft as meaning "all persons actually employed in the working or service of the ship or aircraft including the captain" and "member of the crew" shall be construed accordingly.

10. Mr. Saw SC for the Government submits that it is not necessary to show monetary reward in order to establish that the 1st Applicant was a member of the crew. He refers to R. v. Tsang Kwon Chun Cr. App. 437/91, R. v. Pang Wai Ming Cr. App. 346/94. Secondly, so Mr. Saw says, there need be no evidence that 1st Applicant was engaging in any particular act at the time such as the throwing of a rope or paddling the sampan or that he took a particular role in the manning of the sampan. In the present case, having regard to the size of the sampan and the presence of the 1st Applicant's two native brothers who manned the sampan for bringing in two illegal entrants to Hong Kong, it is implicit, so counsel submits, from the 1st Applicant's admission that he was a member of the crew manning the sampan. Mr. Saw submits that looking at all the circumstances of the case, the trial judge was entitled so to conclude as he did.

11. As to this Mr. Lau does not dispute that a monetary reward need not be shown to prove the case. However, he maintains that the statutory definition of "crew member" requires proof that the 1st Applicant was engaged in the working of the sampan or at least that his role was that of a crew, but that the 1st Applicant's admission was not such proof.

12. On the admission, the trial judge said: "The effect of the admissions made by D1 (1st Applicant) and D3 (2nd Applicant) was that they along with D2 were assisting the conveyance of the two unlawful entrants named in the charge, to Hong Kong. By this I hold that the three were acting as crew members on this small vessel."

13. The crux of the matter is whether the trial judge was entitled to conclude from his reply "I was conveying some people (illegal entrants) here with two of my brothers from my native village" that the 1st Applicant was admitting his role as a crew member of the sampan and whether in all the circumstances, it was the only meaning that could be attributable to what he said.

14. The 1st Applicant was at the bow of the sampan. On board were the two illegal entrants and his two native brothers, one of whom admitted steering and the other admitted to be a crew. The 1st Applicant was not himself a paid passenger. In addition to admitting conveyance of the illegal entrants, he elaborated that the reward was to be decided by his native brother in charge, who was steering the sampan. We are not told what he actually said in Chinese that was translated into "convey". "Conveying" may of course connote "carrying" other than by the speaker. Here the 1st Applicant said that he was conveying, and if the 1st Applicant had meant that he was merely bringing or taking in the illegal entrants with no involvement with the sampan, he could not have failed to say more than just that he was "conveying some people" in his spontaneous response to the police officer and he would not have gone on to say that he was conveying the people in the sampan "with two of (his) brothers from (his) native village", who were in fact manning the sampan. In the circumstances, the judge was entitled to find that the 1st Applicant admitted he was conveying these illegal entrants by the sampan. We are satisfied that the trial judge rightly concluded that he was a member of the crew. There was ample evidence, in the circumstances, for the trial judge to convict the 1st Applicant as charged. His application for leave to appeal against conviction is dismissed as is his application for leave to appeal against sentence.

Representation:

Mr. D.G. Saw, S.C. & Simon Tam for Respondent

Mr. Walter Lau (D.L.A.) for LAM Shui-tung (re: conviction)

LAM Shui-tung, Applicant in person (re: sentence)

LAM Sau-pui, Applicant in person (re: conviction and sentence)