Lau Muk Tau and Others v. The Queen

CACC001044/1980

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Coram: Liu, J. in Court.

Date of Judgment: 31st December, 1980

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JUDGMENT

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1. In this case, all three appellants were charged with aiding and abetting two illegal immigrants to enter and remain in Hong Kong without the authority of the Director of Immigration. The offence was committed on the 16th September, 1980.

2. The 1st appellant is 62, the 3rd appellant is 52 and the 2nd appellant is 29. It was conceded by the prosecution that no monetary gain was involved. It was accepted that the 1st appellant and the 3rd appellant are uncles of the two illegal immigrants.

3. From the Record of Appeal, it transpires that the 1st and the 3rd appellants, upon information received, set out to Sai Kung seeking to locate the two illegal immigrants. The 1st and the 3rd appellants both embarked on the venture with suitable clothings for the illegal entrants and were intercepted on their way back to Hong Kong with these illegal immigrants by the police.

4. My attention has been drawn to a recent decision by Garcia, J. in LEUNG Chun-chung v. The Queen⁽¹⁾, the judgment of which was given on the 12th July, 1980. Garcia, J. referred to a number of authorities with emphasis on a judgment of Leonard, J. in the case of TSE Chan-lit and TSANG Hon-chiu v. The Queen⁽²⁾. I fear, any observations I may make in these proceedings would just cause more confusion. I have certainly no wish to make any further contribution to the meaning of a close relationship for mitigation.

5. Viewed in the best light and to the best advantage of the 1st and the 3rd appellants, what have been enunciated in the decisions to which I have been referred may be extended, with a fair degree of sympathy, to the 1st and the 3rd appellants.

6. It remains for me to say that as far as the 1st and the 3rd appellants are concerned, I am prepared to and do allow their appeal against sentences and have their sentences set aside and substituted by a fine of $5,000 each.

7. I turn next to the appeal of the 2nd appellant. I am afraid he stands in a different category from the other two. He is a mechanic earning $2,000 a month, approximately $70 a day. On the 16th September, 1980 which was a Tuesday, he met the 1st and the 3rd appellants in the vicinity of a bus stop. Upon being briefed on the identity of the two illegal immigrants, it appeared that he knew the brother of one of them. According to his cautioned statement read by consent, he was slightly more vague to the police investigator by saying that he thought that one of the illegal immigrants was a brother of his friend. Be that as it may, there is no family relationship. The evidence also did not suggest that he was in a position to render any useful assistance to the 1st or the 3rd appellants. Nor was there any evidence to indicate that he had any compelling reason to become a party in the venture undertaken on the 16th September, this year. The circumstances, as far as the 2nd appellant is concerned, are not entirely without suspicion. But I must hasten to add that the appeal of the 2nd appellant is not to be adjudicated upon or determined on suspicion.

8. Each case naturally has to be decided on its own merits. The 2nd appellant's claimed relationship with one of the illegal immigrants does not, in my view, bring him within the line of authorities so ably cited to the court by Mr. Barretto. I can find no justification whatsoever for interfering with the sentence passed by the learned magistrate on the 2nd appellant. The 2nd appellant is a young man with a good employment and a fairly sizable family, the youngest member of which is now 6 months. But offences of this nature are serious and must be discouraged.

9. In conclusion, I would and do dismiss the appeal of the 2nd appellant against sentence, and the 2nd appellant's sentence is to stand. The 1st and the 3rd appellants do have seven days to pay their fines respectively.

Representation:

Mr. R. Barretto instructed by Messrs. Alexander Tsang & Co. for all Appellants.

Mr. Noble, counsel for Respondent.

(1) Criminal Appeal 509 of 1980

(2) Criminal Appeal 590 of 1978