R. v. Kwok Yau Fat
Read the full judgment text of CACC 537/1996 on BabelCite. This Court of Appeal judgment was delivered on 28 February 1997 before Power Ag CJ, Mortimer JA.
Criminal law – Immigration Ordinance – s.37D – assisting passage of unauthorized entrants – sentence appeal – guilty plea – one-third reduction – guideline authority – ill health – exercise of mercy – personal circumstances of offender – loss of time – The applicant pleaded guilty to one count of assisting the passage within Hong Kong of two unauthorized entrants contrary to s.37D of the Immigration Ordinance. At 02:07 hours on 20 July 1996, police on patrol in a launch intercepted an unlit motorized vessel sailing towards Yuen Long and found the applicant at the front of the vessel, his cousin steering, and two Chinese females in a compartment, one of whom was nine months pregnant. The applicant admitted he owned the vessel and was conveying the women to Hong Kong for reward, and that he had employed his cousin to steer. The trial judge, following the guidelines in The Queen v. Wong Yin-lung Cr. App. No.54 of 1994 and applying a one-third reduction for the guilty plea, sentenced the applicant to three years and four months' imprisonment. Whether the sentence should be further reduced in mercy on account of the applicant's ill health and his motive of earning money for a second operation – held, no; personal circumstances of the offender are not matters to which weight can properly be given when assessing the propriety of a sentence, and the sentence was a proper one on the facts. Whether loss of time should be imposed in respect of an appeal that, from the outset, had no real chance of success – held, no; the court refrained from making a loss of time order only because of the applicant's physical condition. Application dismissed; sentence of three years and four months' imprisonment upheld.
Legal issues: Further reduction of sentence in mercy on account of ill health · Whether loss of time should be ordered for an unmeritorious appeal
Outcome: Application for further reduction of sentence dismissed; the sentence of three years and four months' imprisonment imposed at first instance was upheld.
Cited by 14 cases
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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. |
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