Leung Chun Chung v. The Queen

CACC000509/1980

Coram: Garcia, J. in Court

Date of Judgment: 12 July 1980

-----------------

JUDGMENT

-----------------

1. On the 14th day of May, 1980 the appellant pleaded guilty to the charge of aiding and abetting illegal immigrants to remain in Hong Kong contrary to Section 38 (1)(b) of the Immigration Ordinance Cap. 115 and Section 89 of the Criminal Procedure Ordinance Cap. 221. He was convicted of the offence on the 28th day of May 1980 and he has a clear record and the learned magistrate imposed on him a sentence of 12 months imprisonment. The appellant now appeals against this sentence as being manifestly excessive.

2. The facts of the case are that on the evening of 15th April, 1980 Chau Hong-hoi, the nephew of the appellant, that is the son of the appellant's elder sister, and Chau Yau-fat, the brother of the husband of appellant's elder sister, left mainland China by sampan and landed on Lantau Island on 17th April, 1980 as illegal immigrants. Both of them remained on the island until about 6 a.m. on the morning of 19th April, 1980, that is, two days after landing, before they rang up the appellant asking him to pick them up at about 11 a.m. the same day in the vicinity of the Lin Hing Monastery. The appellant, in compliance with their request, arrived with food and clothing at the appointed time and at the designated place, and on arrival called out the name of Chau Yau-fat, as a result of which the two illegal immigrants came out of hiding and made contact with the appellant. Following this, the three of them went to Mui Wo Ferry Pier by bus and at the ferry pier at about 12.30 p.m. the same day, they were spotted by two police officers on plain clothes duty and stopped. After certain inquiries, they were all arrested and the appellant was charged with the offence for which he was convicted. The two illegal immigrants were eventually repatriated to China. The learned magistrate before whom the appellant appeared called for a probation officer's report and this was presented on the 28th May, 1980. It appears from the report that the appellant came to Hong Kong as an illegal immigrant in 1960 and by dint of hard work had been able, in the course of his stay in Hong Kong, to buy his own flat in 1976 and to run a piece-goods business from a fixed pitch stall which was allocated to him on compassionate grounds by the Social Welfare Department. It also appears that this business is fairly successful as he derives a profit of about $3,000 per month with which he supports a wife and 4 very young children. At no time has it ever been suggested by the prosecution that the appellant obtained any money from the commission of the present offence nor has it ever been represented that the appellant had made any prior arrangements for the 2 illegal immigrants to come to Hong Kong from mainland China. On the contrary it has been accepted by the learned magistrate that the appellant committed the offence mainly on account of family duty and also for humanitarian reasons. In his Statement of Findings, the learned magistrate reviewed in a careful and exhaustive manner the change in the sentencing pattern for offences of a similar nature from 1977 till the present day and he cites the cases of Attorney-General v. Tsang Sung (Review Application No. 6 of 1977) C.A. (1977) H.K.L.R. at p.549, Tse Chan-lit and Tsang Hon-chiu v. The Queen (Criminal Appeal No. 590 of 1978), Tang Koon-sun v. The Queen (Criminal Appeal No. 991 of 1978), Lam Hing-wing v. The Queen (Criminal Appeal No. 651 of 1979), Attorney-General v. Leung Ming and Leung Tai (Application for Review No. 3 of 1980), Attorney-General v. Ng Kam-fook (Application for Review No. 4 of 1980) and Chan Tam-chai v. The Queen (Criminal Appeal No. 194 of 1980) to illustrate his findings. He came to the conclusion from a review of these cases that the Court of Appeal had decided that immediate custodial sentences of a deterrent nature should be imposed for such offences, and that in the result, consideration of the individual circumstances of the offender must take second place. He therefore imposed on the appellant what was now regarded as a "normal sentence" namely, 12 months imprisonment. With his conclusions I think one cannot disagree especially where the implications of such offences are extremely serious for the welfare, prosperity and security of Hong Kong and its citizens, and the alarming increase in the number of illegal immigrants into this territory have strained and would continue to strain its resources to intolerable limits, and that therefore the individual interest must be subordinated to the common weal. The cases cited earlier decide that for offences of aiding and abetting illegal immigrants the normal sentence to be imposed would be an immediate custodial sentence of 12 months imprisonment and that only in the very rarest and exceptional of caes would a non-custodial sentence be substituted. However, in Tse Chan-lit and Tsang Hon-chiu v. The Queen (Criminal Appeal No. 590 of 1978) which is much relied upon by learned counsel for the appellant. Leonard, J. as he then was, said in respect of one of the appellants:-

"He stood in a position of a relative to one of the illegal immigrants and it is because of that that I do not think that an immediate custodial sentence was appropriate in this particular case. I should have thought the proper sentence was (if he could afforded it to pay it) a substantial fine. In saying all this, I do not mean for one moment to detract from what was said in Application for Review No. 6 of 1977 namely, that the offence is one which excepted in the rarest of cases is deserving of an immediate custodial sentence. I consider that where a relative or one who stands in the position of a relative is concerned, the rare case has occurred."

3. In that case the relative referred to was in fact not strictly one, because he described himself as a god-father to one of the illegal immigrants. In this particular case, it has been accepted by the learned magistrate that the appellant is the uncle of one of the illegal immigrants and in fact is related by marriage to the other. The facts of this case and the matters which had been pleaded in mitigation both in this Court and in the Court below and the favourable report which had been obtained in respect of the appellant would, in my view, bring this case within the rare case mentioned above. In the circumstances, an immediate custodial sentence is not called for and even if such a sentence had to be imposed, it should not be of the length which the appellant now appeals against. If this offence can be considered to be a lapse in this man's life, the very favourable report which he had earned for himself and the dilemma which any man placed in the same position would have found himself put this case into the category of the rare case, although I am not minded to suspend the sentence imposed upon him by the learned magistrate. The suspension of a prison sentence is not an inefficacious deterrent even in cases such as these. So also is a substantial fine a deterrent for a person such as the appellant. The learned magistrate has also referred in the Statement of Findings to the fact that he would have imposed a substantial fine on the appellant if he were able to do so. This course I propose to take. The appeal therefore against the sentence of 12 months imprisonment is allowed and a fine of $5,000 is substituted therefor.

Representation:

Mr. Patrick Yu (J.S.M.) for appellant

Mr. J.G. Hagon, Crown Counsel for Crown/respondent