HKSAR v. Tsui Kwong Ming

CACC 247/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 247 OF 2004

(On Appeal from DCCC 159/2004)

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BETWEEN

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Coram: Hon Stuart-Moore VP and Lugar-Mawson J in Court

Date of Hearing: 14 December 2004

Date of Judgment: 14 December 2004

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Background

1.The Applicant, Tsui Kwong Ming, was charged with assisting the passage to Hong Kong of an unauthorized entrant, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115.  He pleaded guilty to this charge before H H Judge Chua in the District Court on 11 March 2004 and was sentenced to 4 years’ imprisonment.

2.The Applicant now seeks leave to appeal against sentence out of time.  He is two months late in submitting his notice of appeal; we have however decided that we will entertain his application.

Facts

3.In the early hours of 26 December 2003, the Applicant was intercepted while sailing an unlit wooden sampan into Hong Kong waters in the direction of Lau Fau Shan.  There were two people on board the boat, the Applicant and a young woman, who was about 9 months pregnant. In the summary of facts read out to the Judge the Applicant was rather grandly described as the boat’s “coxswain”.

4.The boat had no fire fighting equipment, no life saving appliances, no navigation lights suitable for night operation and was unsuitable for carrying passengers.  The best that could be said for it was that the Marine Department's ship inspector described its hull as being in “in normal condition.”

5.Under caution, the Applicant admitted that he had assisted a friend in bringing the young woman to Hong Kong.  They had set off at around mid-night from Shekou.  He claimed that he had intended to come to Hong Kong to collect rubbish and he was giving the young woman a free ride, and no one had paid him to undertake the journey.  He said that he had bought the boat in Shenzhen for RMB 2,000 and that he was aware that the young woman was pregnant.

6.The Applicant’s counsel repeated these claims in mitigation.  He stressed that the Applicant had received no payment for bringing the young woman to Hong Kong.

7.In March 1995, in the District Court, the Applicant had been sentenced to 3 years and 5 months’ imprisonment for a similar offence.

Sentencing

8.In her reasons for sentence, the Judge said that she did not believe the Applicant had made the journey to Hong Kong to collect rubbish and as a favour for a friend.  She was satisfied that the Applicant had been paid to undertake the journey so that the young woman could give birth to her child in Hong Kong.

9.As the Applicant was, as she put it, “the captain of the vessel”, she took a starting point of 5 years' imprisonment and increased that to a starting point sentence of 6 years’ imprisonment to reflect what she saw as the aggravating features in this case of the dangerous conditions under which the boat was operated, the fact that the young woman passenger was heavily pregnant, and the fact that this was the second time the Applicant had committed this offence.  She then gave the Applicant a one-third discount to reflect his guilty plea and sentenced him to 4 years’ imprisonment.

Grounds of appeal

10.Mr Christopher Coghlan, on behalf of the Applicant, submits that the Judge erred in establishing the factual basis on which he was sentenced, in that she disbelieved that was not paid for his services.  In finding that the young woman’s pregnancy was an aggravating factor and in concluding that the boat was flimsy and the trip was dangerous.  He says that in all the circumstances of the case the Applicant’s sentence of 4 years imprisonment was manifestly excessive.

11.In argument before us this morning, Mr Coghlan says that the voyage across Deep Bay without navigation lights was not unsafe as the Applicant was used to sailing in those waters.

Discussion

12.We do not agree.  This Court in R v. Lam Kon Man Crim App No. 329/1990 (unreported) held that where the defendant is in charge of a vessel in which unauthorized entrants are carried a sentence of 5 years' imprisonment after trial is appropriate for this offence.  See also R v. Wong Yin Lung, Crim App No. 52/1994 (unreported), where this Court said:

“…the five year starting point and the accretions for aggravating circumstances have application to the captain or person in charge of the vessel”.

13.In R v. Ng Kit Yuen [1992] 1 HKCLR 170, this Court held that that starting point sentence should be increased if there was evidence that the illegal immigrant was concealed in a place from which escape would be difficult, or if the vessel was in an unseaworthy condition, and that where both circumstances existed a starting point sentence of as high as 9 years would be appropriate.

14.In this case, as it was part of the Summary of Facts, to which the Applicant agreed, that the boat was both in an unseaworthy condition and operated in an unseaworthy manner, the Judge’s finding that the boat was “flimsy” appears to be justified.  That alone justified the higher starting point of 6 years, which she took.

15.It is true that the Judge held no Newton Inquiry (see R v. Newton (1982) 4 Cr App R (S) 388) before concluding that the Applicant had been paid to undertake the voyage.  However, as she did not use that finding as one of her reasons for increasing the starting point sentence, no valid objection can be taken to her finding on that issue.

16.So far as the young woman passenger’s pregnancy is concerned, it is true that there was no independent evidence confirming the fact that she was 9 months pregnant.  However, the Applicant admitted the truth of the Summary of Facts in which it was stated that the young woman was “…about 9 months pregnant.”  And as the Judge said in the course of her colloquy with defence counsel “… you can’t hide that sort of thing”.

17.In R v. Lo Shui Lun CACC 109 of 1995 (unreported), this Court held that although the 5 years’ starting point recommended takes into account the fact that the smuggling of unauthorized entrants involves some kind of danger to life, the period can be increased where the unauthorized entrants, by reason of age or physical condition, are at greater risk than a normal, healthy person would be.  On this matter the Court said:

“…the degree of danger would involve, among other things, the age and condition of unauthorised entrants. For the very young, very old and infirm would naturally be at greater risk in the event of a mishap “.

18.There can be no doubt that a pregnant entrant at the advanced stage of her pregnancy falls within the category of persons who are at greater risk.

19.As to whether or not the voyage was dangerous, we would have thought that it would be obvious to anyone that it was dangerous, if not foolhardy, to undertake a voyage of over two hours across Deep Bay in a boat as unseaworthy as this one was and operated without navigation lights.  The fact that the Applicant may have undertaken that voyage before in similar circumstances without coming to any mishap does not remove that danger.

Decision

20.In the circumstances of this case, we are satisfied that the starting point of six years’ imprisonment adopted by the Judge was correct and that the resulting sentence of 4 years’ imprisonment, taking account of the Applicant’s guilty plea, was not manifestly excessive.  The application for leave to appeal against sentence is dismissed.

Mr David Leung, SGC for the Respondent

Mr Christopher Coghlan, instructed by Director of Legal Aid, for the Applicant