R. v. Tsang Kwong Chun

CACC000437/1991

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

Date of hearing: 8 April 1992

Date of delivery of judgment: 8 April 1992

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J U D G M E N T

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

1. This is an application for leave to appeal against conviction on a charge of being the member of a crew of a vessel bringing illegal immigrants into Hong Kong, contrary to the Immigration Ordinance, Cap. 115.

2. The facts of the matter were not in dispute. On the 7th June 1991 a Chinese fishing vessel of some 32 tonnes was sighted and intercepted by marine police near Shek O, Hong Kong Island. Found on board the vessel were ten persons, seven of whom were found to be illegal immigrants and were repatriated to the Peoples Republic of China. The other three were alleged to be crew members, one of them, Fong Siu Chung, to be the captain of the vessel.

3. The applicant made a statement under caution which was admitted in evidence by consent and the Crown relied upon that statement, together with a certificate made by a superintendent of police pursuant to s. 37K(2) of the Immigration Ordinance, Cap. 115. This section provides that where a police superintendent certifies that in his honest belief a person is a member of the crew of a vessel, such certificate shall be evidence that he was such a member unless the contrary is proved, on the balance of probabilities.

4. The applicant did not give evidence at the trial but before us said that he wished to come to Hong Kong and rather than find some $800 for his passage he was given the option of helping to steer the vessel. However his sole objective was to gain entry into Hong Kong, for the usual reason of being able to help his family.

5. Evidence was given by the captain that the applicant did steer the vessel for some seven hours of the ten-hour voyage. The applicant told us that he only did so until it reached the high seas. The captain had given evidence that he had never been to sea before, which seems extraordinary bearing in mind the size of this vessel.

6. The trial judge considered the statement made by the applicant which was, as he said, a mixed statement. In it he said, inter alia, "after telling us to set sail, they went back onto the shore. I was therefore responsible to steer the boat for Hong Kong". Later he went on: "I was only responsible for steering a boat to Hong Kong instead of making payment for me to sneak into Hong Kong". That is substantially what he has told us today.

7. We are therefore satisfied that on that evidence, even without the presumption, the trial judge was entitled to come to the view that the applicant was a member of the crew of the vessel in that he did help to steer it into Hong Kong. Whether or not he was also going to steer it back into China is in some doubt but is not relevant for the purposes of the charge.

8. The applicant also relied on the provisions in s. 37C(2) (b) of the Immigration Ordinance that he did not, on the basis of his statement, realise that the other persons on board the vessel were unauthorised immigrants. The trial judge found that, on the evidence, unbelievable. We agree.

9. We are satisfied that the trial judge had ample evidence before him to come to the conclusions that he did and that the applicant was a member of the crew of the vessel. We see no reason to interfere with the conviction and the application is refused.

Representation:

Applicant, Tsang Kwong Chun, in person

Mr. T.H. Casewell for Crown