The Queen v. Lam Cheong and Another
Read the full judgment text of CACC 431/1983 on BabelCite. This Court of Appeal judgment.
1. The applicants, Lam Cheong and Ngai Chi-hung, seek leave to appeal against their convictions on an offence of conspiracy. The count in the charge sheet read as follows:
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CACC000431/1983 IN THE COURT OF APPEAL
BETWEEN
____________ Coram: McMullin, V.-P., Silke, J. A. & Hooper, J. Date: 6th March 1984 ___________ JUDGMENT ___________ Silke, J. A. : 1. The applicants, Lam Cheong and Ngai Chi-hung, seek leave to appeal against their convictions on an offence of conspiracy. The count in the charge sheet read as follows:
Particulars of Offence
2. There was evidence before the trial judge of a conspiracy to bring unauthorized entrants from China to Hong Kong. They were children and, having been given immunity, were called by the prosecution. 3. The evidence in respect of both Lam and Ngai - Lam being the 6th defendant and Ngai being the 8th defendant upon a multi-defendant charge - was contained in cautioned statements. Those statements contained ample evidence to implicate them in the conspiracy. 4. Mr. Mathews, who appears on behalf of Lam Cheong, has argued before us three grounds of appeal. 5. The first was that the trial judge convicted the applicant on the first charge of the indictment which disclosed no offence known to law. This ground hinges upon the wording of the statement of offence, that is: "contrary to Common Law and section 37D(1)(a) of the Immigration Ordinance". 6. We accept that there is no such conspiracy as one under section 37D(1)(a), in other words, no statutory conspiracy. The charge was conspiracy contrary to Common Law. It seems to us unnecessary to have added the words "section 37D (l) (a)" to this statement of offence but we do not think it to invalidate the charge - it was superfluous. Nor do we think it to have misled he applicant in any way. It may well be that that was put there for the purpose of showing an accused, the statute, from which the illegality arises. But that is as far as it can go. 7. Mr. Mathews' second ground is to an extent an alternative, but not quite, to his first ground. He said that the charge was bad for duplicity in that the statement of offence charged both common law conspiracy and conspiracy to contravene section 37D(1)(a). It is alternative in that if we were with him on ground 2 it would be unnecessary. But we must deal with it for he says: "if the charge is known to law then two offences are charged ." Again, with respect to his argument, we do not agree. It was quite clear that the charge which the applicant faced was one of conspiracy contrary to Common Law. We do not think the duplicity for which Mr. Mathews argues to exist. 8. The third ground was that the trial judge convicted the applicant on the first charge of the indictment which was bad for duplicity in that the particulars of offence alleged conspiracy-to assist the passage to and within" Hong Kong of unauthorized entrants. 9. This ground turns on the interpretation of what is meant by "to Hong Kong" and separately what is meant by "within Hong Kong". We had been referred to the provisions of section 37D(1)(a) and Mr. Mathews submits that there are four ways of committing the offence referenced in paragraph (a) of that section: first: by arranging "to" - if I may use shorthand, second: by assisting "to", third: by arranging "within" and fourth: by assisting "within". 10. We can say straightaway that we are concerned here only with "assisting". 11. It is Mr. Mathews' submission that "to Hong Kong" means arranging or assisting a person to come from outside Hong Kong to a specific place in Hong Kong and that one does not arrange or assist within Hong Kong until such time as the unauthorized entrant leaves, with help, that specific place to which he has already come. But an unauthorized entrant who arrives at the border of Hong Kong and goes to: the place to which he intends to go within Hong Kong may need assistance. If he is helped - to use a neutral term - that help amounts to assistance he is being assisted; within Hong Kong. 12. We are not prepared to extend the phrase "assist the passage to" as meaning assisting from without Hong Kong to a specific place within Hong Kong itself in the terms of Mr. Mathews' submission. We think that "to Hong Kong" must mean "to the place. which is Hong Kong" and. that is within its borders generally. 13. It may be that two separate conspiracies could arise if, having reached their haven within the confines of Colony, people were then moved from that haven to another place. But that is not the case in this particular incident . 14. In the event, we are not with Mr. Mathews on his submissions and the application for leave to appeal by Lam Cheong against his conviction is refused. 15. Had we been with Mr. Mathews we would have given the benefit of his argument to Mr. Ngai, the 8th defendant, who is the 2nd applicant. We have heard him in relation to his own homemade grounds which were basically that the confession upon which his conviction was grounded was a forced confession. He has not . sought to add to those grounds at this hearing. 16. The confession was before the trial judge. It was a matter for him to evaluate, having admitted it, as to what weight, if any, he should put upon it. We are not prepared to say that he was wrong in his assessment either as to its voluntary nature or its weight. If accepted it was sufficient to ground the conviction. 17. In the event Ngai Chi-hung's application for leave to appeal against conviction is also refused. 18. The application in respect of sentence of Lam Cheong has been abandoned and, if I may say so, very properly. The sentence of three years was by no means wrong in principle or in any way excessive. Representation: J.J. Mathews, Esq. assigned by DLA for 1st applicant. 2nd applicant in person. S. Leung, Esq. for Crown/Respondent. |