The Queen v. Wong Cho Chop

CACC000517/1990

BETWEEN

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Coram: Hon. Fuad, V.-P., Clough & Macdougall, JJ.A.

Date of hearing: 12 July 1991

Date of judgment: 12 July 1991

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant was convicted on a plea of guilty before Mr. G.P. Muttrie sitting as a deputy judge of the District Court of being a member of a crew of a ship which entered Hong Kong with unauthorised entrants on board contrary to section 37C(1) of the Immigration Ordinance, (Cap. 115). He was sentenced to 3 years' imprisonment. It is against that sentence that he now applies for leave to appeal.

2. The agreed facts of the case were that on the 1 June 1990 two police officers saw a group of three persons outside the Cheung Chau Ferry Pier. Their suspicions were aroused so they went forward and questioned them. All three admitted that they were illegal immigrants from China and had just landed at Cheung Chau. One of the illegal immigrants pointed to a vessel in the typhoon shelter and told the officers that it was the one on which they had just arrived. On boarding the vessel the officers discovered the applicant, the applicant's wife', his son and another man. The applicant was then identified by the three illegal immigrants as the person to whom they had paid money for their passage to Hong Kong. Following this, the applicant made a cautioned statement in which he admitted that he had conveyed the three men into Hong Kong and had been paid RMB 500 by each of them.

3. The deputy judge stated in his Reasons for Sentence that the offence was a kind that attracted a deterrent sentence. He gave some credit for the late plea of guilty and the applicant's clear record, bearing in mind that the applicant is a Chinese national. He also observed that in the light of the authorities he could not take into consideration the fact that the applicant "will probably lose his boat". He was here referring to proceedings that had been commenced under section 37E of the Ordinance for forfeiture of the vessel.

4. Mr. Macrae, who appeared to the applicant in this court but not in the court below, advanced two grounds of appeal. The first ground was a complaint that the judge had erred in his approach to sentence in that, first, he had neglected to state his starting point, thereby failing to indicate the extent of the discount he gave for the mitigating factors, secondly, he had failed to take into account humanitarian considerations relating to the applicant's family and, in particular, the health of his wife and, thirdly, he stated that he could not take into consideration the probable forfeiture of the applicant's boat. The second ground was that in all the circumstances the sentence of 3 years' imprisonment was manifestly excessive or wrong in principle on both.

5. Although this court has said that it is desirable that judicial officers should indicate the starting point for sentence, we should like to make it plain that a failure to do so will not of itself found an appeal for the reduction of an appropriate sentence. As to the humanitarian considerations it appears that subsequent to sentencing, documentation purporting to come from a clinic in Toi Shan county has been received in which it is stated that the applicant's wife is suffering from tuberculosis and schizophrenia. There is also a document from the Shek Shun District of Toi Shan county that the applicant has 4 children, the oldest being 16 years of age, and that the Shek Shun District acted as the applicant's guarantor in respect of a loan of 150,000 Yuan for the purchase of his boat.

6. Whatever the applicant's family circumstances might be, he embarked on a deliberate course of action wit full knowledge of the possible consequences. In our view the deputy judge was right in saying that it is difficult to apprehend those who commit this type of offence and that deterrent sentences are called for.

7. With regard to the matter of forfeiture it was the deputy judge's function to determine the appropriate penalty after a consideration of the facts before him and the principles laid down by this court. In Attorney General v. So Ma-por [1981] HKLR 696 Sir Denys Roberts CJ delivering the judgment of this court said at page 698:

"    One of the factors which the magistrate took into account in deciding to impose a fine was that the cloth was likely to be forfeited in accordance with the provisions of Import and Export Ordinance. In our view; when deciding on the penalty to be imposed for an offence of exporting unmanifested cargo, a magistrate should disregard the question of forfeiture. This is a penalty to which the defence are liable under entirely different provisions of the Ordinance. Forfeiture proceedings depend upon an administrative decision for their inception; it cannot be assumed that they will be instituted in all cases. Nor can it be assumed that, if sought, an order of forfeiture will necessarily be made. A magistrate should therefore disregard the question of forfeiture."

8. Although the court was there concerned with proceedings under the Import and Export Ordinance (Cap. 60) the same principle as that tated by the Chief Justice applies to proceedings under the Immigration Ordinance. The deputy judge correctly stated that in the light of the authorities he could not take into consideration the fact that the applicant would probably lose his boat.

9. In conclusion we think we should observe that the applicant did not resist the application made by the Director of Immigration for forfeiture of the vessel - an application which was subsequently granted by a magistrate on 9 January 1991. Moreover the applicant was not a mere crew member. He was the captain of the vessel. In our view the sentence of 3 years' imprisonment was neither manifestly excessive nor wrong in principle. The application is therefore refused.

Representation:

Mr. John Halley and Mr. G.E. Forlin for Crown Prosecutor

Mr. Andrew Macrae (D.L.A) for applicant