R. v. Kwok Yau Fat

CACC000537/1996

IN THE COURT OF APPEAL

1996, No.537

(Criminal)

_______________

_______________

Coram: Hon. Power, Ag. C.J. & Mortimer, J.A.

Date of hearing: 28 February 1997

Date of judgment: 28 February 1997

_______________

J U D G M E N T

_______________

Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter faced one charge of assisting the passage within Hong Kong of unauthorized entrants contrary to s.37D of the Immigration Ordinance. It was alleged that he and Kwok Ying-loi, who is his cousin, on 20th July 1996, assisted the passage within Hong Kong of two unauthorized entrants, namely Wong Toi-yung and Cheung Hau-ling. He pleaded guilty to that charge and the facts revealed that at 02:07 hours on the night of 20th July 1996, police officers on patrol on police launch spotted an unlit motorized vessel sailing towards Yuen Long. They intercepted the vessel and found on board the two defendants and two Chinese females who were the unauthorized entrants named in the charge. The applicant was found on the front of the vessel and the 2nd defendant was found steering the vessel. The two females were in a compartment. It is to be noted one was nine months pregnant. It has become increasingly common for women in a late stage of pregnancy to attempt unlawfully to enter Hong Kong so that their children can be born in the Colony. The other unlawful entrant said that she was coming to Hong Kong to seek employment.

2. The applicant admitted that he was the owner of the vessel, that he was conveying the women to Hong Kong for reward and that he had employed his cousin, the 2nd defendant, to steer the vessel.

3. The trial judge was satisfied that a proper sentence after a one-third reduction for plea was one of three years and four months. He did so following with exactness the guidelines set out in The Queen v. Wong Yin-lung Cr. App. No.54 of 1994.

4. The applicant today has submitted that the court should, in an exercise of mercy because of his ill health, reduce the sentence even further. He has said that he is a handicapped person, having been injured in an accident, and that the reason he was bringing the unlawful entrants to Hong Kong was to earn money for a second operation. He has described, and we accept, the physical difficulties under which he labours because of his injuries. However, these are not matters to which we can properly give weight when assessing the propriety of a sentence. It was a proper one upon the facts before the judge and nothing has been said that would allow us to interfere therewith.

5. We have considered whether or not there should be loss of time given that this was, from the outset, an appeal that had no real chance of success. We do not intend to do so only, we think it proper to add, because of his physical condition. The application is dismissed.

Representation:

Mr. D.G. Saw (Crown Prosecutor) for the Respondent.

Mr. Robin Walters assigned by D.L.A. assists the Applicant.

Applicant in person.