HKSAR v. Yeung Wui and Others

CACC 415/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 415 OF 2004

(ON APPEAL FROM DCCC No. 314 of 2004)

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BETWEEN

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Before: Hon Stock, JA, Gall and Lugar-Mawson JJ in Court

Date of hearing: 24 February 2005

Date of judgment: 18 March 2005

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J U D G M E N T

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

Background

1.On 4 June 2004, Yeung Wui (楊會), the 1^st Applicant (the 1^st defendant at trial) was convicted by Her Honour Judge Chua, in the District Court, on his own pleas of four offences, namely:

(a)	Assisting the passage within Hong Kong of unauthorized entrants, contrary to s. 37D(1)(a) of the Immigration Ordinance, Cap. 115;
(b)	Failing to stop, contrary to regulations 20(1) and 20(3) of the Shipping and Port Control Reg ulations, Cap. 313A (subsidiary legislation);
(c)	Endangering the safety of others at sea, contrary to s. 72 of the Shipping and Port Control Ordinance, Cap. 313; and
(d)	Handling stolen goods, contrary to s. 24 of the Theft Ordinance, Cap. 210.

2.On 10 September 2004, Wai Hoi (韋海), the 2^nd Applicant (the 2^nd defendant at trial) and Tuen Kat San (段吉新), the 3^rd Applicant (the 5^th defendant at trial), were each convicted by the same judge after trial, of individual charges laid against them of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s. 38(1)(b) of the Immigration Ordinance, Cap. 115 and a joint charge of theft, contrary to s. 9 of the Theft Ordinance, Cap. 210.

3.All three Applicants were sentenced on 10 September 2004.  In respect of the handling charge laid against the 1^st Applicant and the theft offences laid against the 2^nd & 3^rd Applicants, the prosecution applied for enhancement of their sentences pursuant to section 27 of the Organised & Serious Crimes Ordinance, Cap. 455.

4.The 1^st Applicant was sentenced to 40 months’ imprisonment in respect of the assisting the passage of others offence.  A starting point of 5 years was taken, which was reduced to reflect his guilty plea.  For the failing to stop offence the 1^st Applicant was sentenced to 2 months’ imprisonment.  A starting point of 3 months was taken which was reduced to reflect his guilty plea.  He was ordered to serve this sentence concurrently with the sentence for the assisting passage of others offence.  For the endangering the safety of others at sea offence the 1^st Applicant was sentenced to 12 months’ imprisonment.  A starting point of 18 months was taken, which was reduced to reflect his guilty plea.  He was ordered to serve 4 months of this sentence consecutively to the sentence for the assisting passage of others offence.  For the handling offence the 1^st Applicant was sentenced to 21½ months’ imprisonment.  A starting point of 2 years & 8 months was taken, which was reduced to reflect his guilty plea.  He was ordered to serve 12 months of this sentence consecutively to the sentence for the assisting passage of others offence and the endangering the safety of others at sea offence.  The 1^st Applicant’s total sentence for his four offences is therefore one of 56 months’ imprisonment.

5.The 2^nd and 3^rd Applicants were each sentenced to 22 months imprisonment on the unlawful remaining offence and 2 years’ and 8 months’ imprisonment on the theft offence.  They were each ordered to serve 16 months of their sentences on the unlawful remaining offence consecutively to their sentences on the theft offence.  The total of their sentences are therefore ones of 4 years’ (48 months) imprisonment.

6.All three Applicants now seek leave to appeal against their sentences.  They are represented by Mr. Duncan Percy.  Mr. John Reading SC, Miss Vinci Lam with him, appears for the Respondent.

Prosecution case

7.The prosecution’s case was that in the afternoon of 13 February 2004, the 1^st Applicant, who is a mainlander, was seen by officers on two patrolling police vessels, PV 35 and PV 37, steering a motorised sampan to Long Ke Wan, an island off Sai Kung.  When the sampan reached Long Ke Chai, the smaller beach on Long Ke Wan, six men appeared and clambered onto the sampan carrying eleven Buddhist pine trees with them.  The 1^st Applicant then steered the sampan out of Long Ke Wan.  The two police vessels gave chase.  Officers on PV 37 sent and emitted various continuous visual, audio and hand signals to order the 1^st Applicant to stop the sampan.  He did not, but instead took evasive action by driving the sampan, at about 15 to 20 knots, in a zigzag course, apparently trying to outrun the two police vessels.  It was not until it had collided with one of them, PV 37, that the sampan was stopped.  The chase took about 10 minutes and throughout its course the sampan was at all times in Hong Kong waters.

8.Apart from the 1^st Applicant, the six men, who included the 2^nd & 3^rd Applicants, and the eleven Buddhist pine trees, there was also a bamboo pole and a nylon harness, both about 2.5m in length, on board the sampan.

9.The 1^st Applicant admitted under caution, among others things, that he is a fisherman.  In the morning of 13 February 2004 in a bay just outside the SAR boundary he was introduced to a “boss”, whose name he didn’t know, who asked him to sail the sampan from Shenzhen to Zhuhai to pick up some trees as well as some passengers and then return.  He was promised a reward of RMB300 when he returned.  As he knew the waters around Hong Kong he believed that the true destination was in Hong Kong and not Zhuhai, but as he wanted the reward of RMB300, and as the task was a simple one, he agreed to do it.  On the way back to Shenzhen, after picking up the trees and passengers at a beach, the Hong Kong police vessels chased him.  He then realised he really was in Hong Kong waters and tried to escape.  He knew that the trees were Fung Shui trees and were worth money, although he did not know their exact value.  He believed that the trees had been uprooted from the hills in Hong Kong near to the beach from which the passengers boarded his sampan.  He also believed that the passengers were mainlanders.

10.The 2^nd & 3^rd Applicants admitted under caution that they had been hired in Shenzhen as casual labourers to go to an island to dig up Buddhist pine trees.  After uprooting the trees, they had camped overnight on the hillside, surviving on bread and biscuits that they had brought along with them.  They claimed that their reward was to be a daily wage of RMB25, payable on return with the trees.  They also claimed that they did not know the island they were on was in Hong Kong. 

11.The Ship Inspector who examined the sampan found that it had no fire extinguisher, no lifejacket, no navigation lights and no lashing gear suitable for carrying large sized cargo.  He was of the view that the vessel was not appropriately and sufficiently equipped and was unsuitable for carrying passengers.  The Ship Inspector was also of the opinion that, due its small depth and relatively light construction, the sampan was unsuitable for carrying large sized and/or heavy cargo.

12.The statement of Dr. Yip Kwok Leung concerning the nature of Buddhist pine trees was admitted in evidence.  Dr. Yip is a Conservation Officer with the Agriculture, Fisheries and Conservation Department and the curator of the Hong Kong Herbarium.  In his statement, Dr. Yip said, among other things that:

“Classification

7.  The scientific name of Buddha Pine is Podocarpus macrophyllus...

Conservation Value

11.  Podocarpus macrophyllus is a slow-growing species naturally occurring in small populations restricted to exposed sites along seashore... It takes two to four years for seeds to grow to juvenile plants and takes another ten years to produce the first seeds. It has relatively poor competitive, reproductive and dispersal ability in the wild and thus its natural populations can only be found in certain coastal habitats. The conservation value is thus high for this slow-growing native species.

Potential Threats

12.  Because Podocarpus macrophyllus has commercial value as an ornamental plant, it is subject to threats of illegal exploitation. Illegal exploitation of the natural populations in the Hong Kong countryside also causes damage to the natural environment.

13.  Exploitation of this native plant species was not common in Hong Kong in the last few decades. However, there are numerous recent reports that the species has been illegally exploited. Many fully-grown trees are being harvested in an unsustainable fashion and whole plants are uprooted in most cases. During the process, possibly due to the time constraint and poor workmanship, some of the trees are also damaged to the extent that they are unlikely to recover... The threats owing to illegal exploitation and unsustainable use has indeed surged, threatening the survival of such trees in the natural environment.

14.  From the point of view of flora conservation in Hong Kong, as those wiId populations in other parts of China are reportedly over-exploited and depleted, the local population of Podocarpus macrophyllus represents some of the remaining healthy populations in coastal southern China, if not China at large. The plant communities to which the native Podocarpus macrophyllus belongs (seashore shrublands) have been well-preserved locally, and are of considerable conservation value. Recent cases of illegal felling and uprooting of Podocarpus macrophyllus in Sal Kung have, however, damaged one of the most representative communities of its kind in Hong Kong. Moreover, most illegal exploitation of the species involves the use of unsustainable methods of harvesting, namely unnecessary felling or uprooting of individual trees instead of establishing new plantlets by seed-sowing, shoot-cutting or air-layering. Unsustainable harvesting causes impact to the survival of Podocarpus macrophyllus, particularly the full-grown and established individuals.

Conclusion

15.  Based on the above facts and observations, I am of the view that natural populations of the native plant Podocarpus macrophyllus (Buddha Pine), which has a restricted distribution in Hong Kong, has been threatened by illegal exploitation.”

13.The statement of Dr. Lawrence Chau Kam Chiu was also admitted in evidence.  Dr. Chau is the senior manager of the Flora Conservation Department at the Kadoorie Farm & Botanic Gardens, where he is in charge of a staff of 70 people who are engaged in rare plant and habitat conservation and restoring degraded habitats both in Hong Kong and its neighbouring regions.  In his statement, Dr. Chau said, among other things, that:

“Impact of Illegal Exploitation
9.  The uprooting of naturally-grown Podocarpus macrophyllus causes much environmental damage, including:
	(a)	diminishing the natural population in the area concerned;
	(b)	reducing the number of individuals of this species known from its ‘restricted’ distribution in Hong Kong SAR, which cannot be replenished by natural recruitment;
	(c)	producing within the natural populations undesirable man-made corridors, making these natural habitats prone to soil erosion and invasion of weeds and pests;
	(d)	fragmenting the original populations, thus each fragmented population is subjected to more severe endangerment; and
	(e)	causing undesirable damage to natural landscape.

The natural populations are thus damaged and threatened by cutting, fragmentation, diseases, and ecological damage while the habitat these trees rely on being damaged by erosion caused by the illegal exploitations.

Conclusion

10.  Based on the above facts and observations, I am of the view that the ecology of the native plant Podocarpus macrophyllus (Buddha Pine) had been damaged and will also be further threatened by illegal exploitations.”

14.The statement of DSIP Ronald Abbott, who supervises the compilation of statistics on reported crimes occurring within the Police Force’s Marine Region, was also admitted in evidence.  In his statement, DSIP Abbott said that the number of reported cases of theft of Buddhist pine trees for 2001, 2002 and 2003 were 1, 9 and 7 respectively, for the first 3 months of 2004 the number was 5.

15.The commercial value of the Buddhist pine trees found in the sampan varied from several hundred to several thousand dollars.  Fortunately, all of the eleven trees survived.

Defence Case

16.The 1^st Applicant pleaded guilty and admitted the summary of facts.  The 2^nd & 3^rd Applicants’ defence was that they did not know that they were in Hong Kong.  The judge disbelieved them, finding that they had come to Hong Kong knowingly to steal the trees for reward.

Applicants’ ages

17.We are told that the 1^st Applicant claims to be 23.  He was 22 at the time of the offence.  The 2^nd & 3^rd Applicants both claim to be 18.  They were 17 at the time of their offences.  

Sentencing

18.In sentencing the three Applicants the judge made the following remarks:

“	7.	I am aware that Her Honour Judge Mary Yuen, on 22 July 2004, enhanced the sentence on a conspiracy to steal Buddhist pines to 2 years and 8 months.  There she was dealing with nine trees.
	8.	On 26 July, His Honour Judge Line followed that starting point for a handling charge dealing with four trees.
	9.	On 31 August 2004, His Honour Deputy Judge Tallentire followed the previous starting points in respect of the handling of 14 trees.
	10.	For consistency, I shall follow in adopting the same starting point for now, but as Line J has warned:
	“If the depredations of people like you who are willing to damage the fabric of Hong Kong to put money in your pocket, the enhancements will get bigger”
	for serious damage is done to our stock by the recent relentless theft of the valuable Buddhist pine trees growing in Hong Kong.”

Grounds of Appeal

19.In the grounds of appeal, Mr. Percy contends on behalf of the 1^st Applicant; firstly, that the starting point of 5 years’ imprisonment for the assisting the passage of others offence is wrong, as the unauthorised entrants were collected from within Hong Kong and there was no evidence that they intended to remain in Hong Kong.  Rather the 1^st Applicant intended to assist them to return to the Mainland.  Secondly, that the judge was wrong to make the 1^st Applicant’s sentence on the endangering the safety of others at sea offence partly consecutive to that on the assisting passage of others offence, and that on the handling offence partly consecutive to the other sentences.  Thirdly, that the judge erred in principle by imposing an enhanced sentence for the handling offence without following the guidelines set out in HKSAR v Tam Wai Pio [1998] 4 HKC 291.  And fourthly, that the judge failed to apply the totality principle properly, and that the 1^st Applicant’s total sentence of 56 months’ imprisonment upon pleas of guilty is manifestly excessive, particularly given his young age at the time of sentence of 23.

20.On behalf of the 2^nd & 3^rd Applicants, Mr. Percy contends, firstly, that the judge erred in making their sentences on the unlawful remaining offence consecutive to those on the theft offence.  Secondly, that the judge erred in principle by imposing an enhanced sentence for the theft offence without following the guidelines set out in Tam Wai Pio.  And, thirdly, that the judge failed to apply the totality principle properly, and that their total sentences of 48 months’ imprisonment are manifestly excessive, particularly given their young ages at the time of sentence of 17.

Discussion

21.We do not agree with Mr. Percy’s arguments.

22.We take his arguments in respect of the 1^st Appellant’s sentences for the assisting the passage of others and the endangering the safety of others at sea offences first.  The facts in HKSAR v Wong Chi Kin CACC 357 of 2004 (unreported), referred to by Mr. Reading, are similar to those in this case.  The appellant in that case was convicted after trial of assisting the passage within Hong Kong of an unauthorised entrant and handling stolen goods.  He had been found in Hong Kong waters at night steering an unlit sampan on which there was an unauthorised entrant and four stolen Buddhist pine trees.  There was, as in this case, no evidence that the unauthorised entrant intended to stay in Hong Kong, rather it was the case that he had been brought here for the express purpose of uprooting Buddhist pine trees and stealing them for sale in the Mainland.  The judgment is unclear as to whether it was the appellant himself who had brought the unauthorised entrant to Hong Kong, or if he was, as in this present case, solely employed to take him out of Hong Kong. 

23.On appeal, it was argued that the absence of evidence that the unauthorised entrant intended to stay in Hong Kong distinguished the appellant’s case from those cases where this Court had held that a starting point sentence of 4 to 5 years was appropriate for the offence of assisting the passage of others.  That argument was rejected.  This Court held that it made little difference in terms of sentence whether the unauthorised entrants were brought to Hong Kong so that they could stay here as illegal immigrants, or whether they were brought here solely for the purpose of committing a crime.  At page 8, paragraph 17, this Court said:

“At least in one sense, the mischief in the present case could be considered to be more serious than that of bringing in illegal immigrants to live and work in Hong Kong.  While both are in contravention of our immigrations laws, bringing in people who have no right to enter Hong Kong to commit a crime, where the person in charge of the vessel was also involved in the enterprise, must be viewed more seriously than those who just brought in illegal immigrants who may live or work here, albeit illegally against the immigration laws, because these illegal immigrants in this latter case are not known to the accused to be committing crimes in breach of other spheres of our criminal law.  For example, if an accused brings in illegal immigrants to commit serious offences like murder or armed robbery in this territory, and taking them back afterwards, is he to be considered less culpable than those who just bring in illegal immigrants who may, apart from being in breach of the immigration laws, live and work peacefully in Hong Kong?”

24.We see no reason to depart from what this Court said in that passage.  Indeed it could said that the fact the 1^st Applicant was also in Hong Kong to commit an additional crime - the handling of the stolen Buddhist pine trees - could be said to exacerbate his offence.

25.Neither do we think that the fact that in this present case the 1^st Applicant was taking the unauthorised entrants back to the Mainland reduces his criminality in anyway.  Although there is a specific offence of assisting the passage of unauthorised entrants to Hong Kong, there is no specific offence of assisting the passage of unauthorised entrants from Hong Kong.  This because the act of assisting their passage out of Hong Kong is encompassed in the phrase “passage within Hong Kong.”  As a matter of logic, any person who is in Hong Kong (whether lawfully or unlawfully) has to move within Hong Kong in order to leave the territory.  As the 1^st Applicant was aware that his passengers were unauthorised entrants who had entered Hong Kong illegally, and that he was assisting them leave Hong Kong, his acts were as much directed at subverting Hong Kong’s scheme of immigration control as are the acts of the person who assists the passage of unauthorised entrants to Hong Kong, or facilitates their movement about Hong Kong.       

26.As to the appropriate level of sentence for the offence of assisting the passage of others, after considering a number of relevant authorities, this Court in Wong Chi Kin said at page 5 paragraph 12 of the judgment, that:

“The generally applicable tariff [for the assisting the passage of others offence] is 4 years’ imprisonment: R v Ho Siu Lun and Ors [1987] HKLR 1086, R v Chan Kwok Keung and Anor [1988] 1 HKLR 279 and R v Lam Kon Man, Crim App No. 329/1990.  Where the accused was the captain of the vessel or the person in charge or assisting in the operation of the organization of the venture, the appropriate starting point is 5 years’ imprisonment : R v Wong Yin Lung [19951 1 HKCLR 151 at 153 and R v Pang Wing [19961 1 HKC 624, at 626H and 627A.”

27.In this case, as the 1^st Applicant was the person who both steered and was in charge of the sampan, it cannot be said that the judge erred in adopting a 5-year starting point for the assisting the passage of others offence.

28.This Court in Wong Chi-kin went on to say (also at paragraph 12 of the judgment) that:

“The following situations will be considered as aggravating factors increasing the sentence from the 5 year starting point in respect of the person in charge of the vessel or of one who was in some way actively involved in the circumstances of the aggravation:
	(a)	The unauthorised entrants or illegal immigrants were concealed in a place in the vessel from which escape would have been difficult: R v Ng Kit Yuen [1992] 1 HKCLR 170, at pp. 173-1 74.
	(b)	The vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering the passengers: also see Ng Kit Yuen, at p. 174, and HKSAR v Tsui Kwong Ming, CACC 247/2004, 14 December 2004.
	(c)	The vessel was carrying a large number of illegal entrants: Wong Yin-lung, at p. 153, line 34.
	(d)	Where the vessel was grossly overloaded, creating a gravely hazardous operation: R v Chan Shing Chun, Crim App No 390 of 1995, 9 November 1995.
	(e)	The degree of danger that might be involved caused by the age and physical condition of the unauthorised entrants, as greater risk in the event of a mishap might more easily risk the life of the very young, very old and the infirm: R v Lo Shui Lun, Crim App No 109 of 1995, 17 August 1995 and Tsui Kwong Ming.”

29.There can be no doubt that factors (b), (c) and (d) are present in this present case, Mr. Percy in fact concedes that.  There is also the further aggravating factor that in seeking to evade the police vessels the 1st Applicant operated the sampan in a grossly unseamanlike and dangerous manner, thus further endangering the safety of his passengers. 

30.In R v Ng Kit Yuen [1992] 1 HKCLR 170 (referred to in Wong Chi Kin) this Court observed, at page 174(7), that:

“...Where there is a grave risk to the lives of illegal immigrants, knowingly undertaken for gain, the offence is one of considerably more gravity.  We are satisfied that where both of the circumstances, [namely, illegal immigrants were concealed in a place from which escape would have been difficult, and the vessel used was, by reason of poor maintenance or age in an unseaworthy condition] exist, depending upon the number of immigrants involved and the degree of danger, a starting point as high as nine years would be appropriate.  This period is arrived at by adding 2 years for each of the aggravating circumstances to the 5 years indicated in The Queen v. LAM Kon Man.”

31.In view of the Ship Inspector’s opinion on the sampan’s condition, coupled with the 1st Applicant’s conviction for the offence of endangering the safety of others, the starting point of 5 years’ imprisonment for the offence of assisting the passage of others is, if anything, a light one.  In all the circumstances of this case, neither the 5-year starting point sentence for the assisting the passage of others offence, nor the 1st Applicant’s resulting total sentence of 44 months’ imprisonment for the three offences of assisting the passage of others, failing to stop and endangering the safety of others at sea, passed after his pleas of guilty, can be said to be too high.

32.We now turn to Mr. Percy’s arguments in respect of the judge’s approach to sentencing for handling and theft offences.

33.The 22 months sentences imposed on the 2^nd & 3^rd Applicants for their unlawful remaining offences, though high, are not out of the range of sentences for this offence after trial.

34.We have no doubt that the judge was correct to take the same starting point sentence of 2 years’ and 8 months’ imprisonment for the 1^st Applicant’s handling offence as he did for the 2^nd & 3^rd Applicants’ theft offence.  Although the 1^st Applicant‘s role was different from that of the 2^nd & 3^rd Applicants, in that he handled the stolen trees, whereas they stole them, their respective roles in attempting to unlawfully remove the trees from Long Ke Wan were as equally important.

35.In Tam Wai Pio, this Court, in giving guidance to judges on how to approach the enhancement of a sentence under the Organised & Serious Crimes Ordinance, said this, at page 298 (C-E):

“…we offer the following guidance in order to minimise the risk of confusion for cases where enhancement of sentence has to be dealt with under the procedure laid down in the Ordinance.  This approach would, of course, have to be adapted as necessary where multiple offences are involved, some of which are not organised crimes.  In such circumstances, a judge should consider, determine and set out in clear terms:
	(1)	(a)	the appropriate starting point having regard to the part played by the defendant, and
		(b)	the sentence that the court would have imposed taking into account the defendant’s mitigation and totality;
	(2)		whether the specified offence was an organised crime within the meaning of a 2 of the Ordinance;
	(3)		whether the crime calls for an enhancement of the sentence under the terms of s 27(11) having regard to the information supplied by the prosecution to the court under ss 27(2)(a) to (e) or s 27(8) or the general nature of the organised crime itself
	(4)		if enhancement is called for, the percentage increase by way of enhancement of the sentence.”

36.Clearly the judge failed to follow this guidance.  She should have done so, rather than merely recounting what her fellow District Court Judges had done in similar cases, for it is only by doing so that it will be clear to all concerned whether or not the correct procedures were followed and all relevant factors taken into account.

37.However, given the three Applicants’ roles, the relative sophistication of the scam, in that the ‘diggers’ camped out on the island overnight bringing provisions with them; the flagrant breach of the law in broad daylight; the number of ‘diggers’ involved; the number of Buddhist pine trees stolen and the potential profits involved, as well as the damage done to the species itself and the environment in general, and the prevalence of similar offences, we have no doubt that an enhancement of sentence was called for and that the starting point sentence for the offences of handling and theft  of 2 years and 8 months was fully justified.

38.In looking at the totality of all three Applicants’ sentences we have considered whether or not there was some element of double-punishment.  Our concern being: could it be said that by sentencing the 1^st Applicant to 40 months’ imprisonment, after plea, for the assisting the passage of others offence on the basis that he had assisted the passage of the unauthorised entrants within Hong Kong both for the purpose of their committing a crime in Hong Kong, as well as himself assisting them in their crime by handling the stolen trees, the judge, by sentencing him to an additional term of imprisonment of 2 years and 8 months for the handling offence, was in effect sentencing him for the same crime twice?  And by sentencing the 2^nd & 3^rd Applicants to 22 months’ imprisonment for their unlawful remaining offences on the basis that they had committed a crime in Hong Kong, could it be said that the judge, by sentencing them to additional terms of imprisonment of 2 years and 8 months for their theft offences, was in effect sentencing them for the same crime twice? 

39.We are, however, satisfied that there was no double punishment.  The simple fact is that all three Applicants committed two separate and distinct crimes, one directed against Hong Kong’s scheme of immigration control, the other directed against the property rights of persons within Hong Kong.  The judge recognised this by passing partly consecutive sentences for these distinct offences.  We are satisfied that the totality of all three Applicants’ sentences is correct. 

40.We note that this Court in Wong Chi Kin came to a similar conclusion at page 8, paragraphs 18 & 19, saying:

“	18.	Where unauthorised entrants are illegally brought by an accused into Hong Kong to commit a crime to which the accused is a party, we do not think it fruitful to discern for sentencing purposes whether the immigration offence or the other crime is more serious or dominant.  In the present case, we do not accept that the offence of assisting the passage within Hong Kong of an unauthorised entrant should be treated as subsumed in or (be) less serious than the handling charge, or that the handling charge in the circumstances of this case should be considered as the major crime.
	19.	After all, as submitted by Mr. Leung, the mischief that section 37D of the Immigration Ordinance aims at is the bringing in of unauthorised entrants.  It does not focus on the purpose of bringing in such entrants.  Thus, the bringing in of unauthorised entrants so that they can enter Hong Kong and stay as illegal immigrants or for the purposes of committing a crime makes little difference in terms of sentencing.”

41.The relatively young age of the three Applicants can have little effect in sentencing for the offences they committed.  This Court in R v Wong Yin Lung [1995] 1 HKCLR 151, where the 15-year old applicant’s offence was being a member of the crew of a vessel with unauthorised entrants on board contrary to section 37C(1) of the Immigration Ordinance, expressed the view at page 154(5) that it was:

“… in some doubt as to whether any substantial discount should be given (for young age) in offences such as this as it may regrettably be seen as an invitation by the organizers to employ young men as crew in these illicit ventures”

42.Similar doubts were expressed in Wong Chi Kin, at paragraph 13 of the judgment.

43.In this case it appears from all three Applicants’ cautioned admissions that that the organisers of the expedition to raid Long Ke Wan for Buddhist pine trees deliberately chose young men for that venture.  For us to reduce the Applicants’ sentences by reason of their young age would only be playing into the organisers’ hands.  In any event, only the 2^nd & 3^rd Applicants can be said to be of young age, the 1st Applicant, at 22, was a fully mature man when he committed his offences. 

Decision

44.For the reasons given we are satisfied that the sentences of all three Applicants are neither manifestly excessive nor wrong in principle and we refuse their applications for leave to appeal against sentence.

Mr John Reading, SC, DDPP & Ms Vinci Lam, GC, for the Respondent

Mr Duncan Percy, instructed by Messrs SH Chan & Co., (DLA) for all Applicants