Case Document

CACC000539/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 539
(Criminal)

BETWEEN
	HKSAR	Respondent

	AND

	CHEUNG CHUN	Applicant

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Coram: Hon. Mayo, Leong and Stuart-Moore, JJ.A. in Court

Date of hearing: 8 January 1999

Date of delivery of judgment: 8 January 1999

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J U D G M E N T

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Leong J.A. (giving the judgment of the Court):

1. The applicant pleaded guilty in the District Court to one offence of being a member of a crew of a ship which entered Hong Kong with unauthorised entrants on board. He was sentenced by Judge Davies to 3 years and 4 months imprisonment. He now applies for leave to appeal against that sentence.

2. The applicant was on board a fishing vessel in Hong Kong waters which was intercepted by marine police on anti illegal immigrants operation. On a search of the vessel, the police found three illegal immigrants in the fore hold of the vessel. The applicant subsequently admitted to the police that he was the acting captain of the vessel and he carried the three illegal immigrants into Hong Kong to find jobs on the instructions of his boss and he received no extra money for bringing them here. The vessel normally transported old motor car tyres and it came to Hong Kong four to five times a month. There was no life saving equipment and fire fighting equipment on board.

3. The judge referred to R. v. Ng Kit yuen [1992] 1 HKCLR 170 and he took 5 years as the starting point. After giving 1/3 discount for the applicant's plea, he arrived at the sentence of 3 years and 4 months.

4. The applicant submitted in his grounds of appeal that he had to act as his boss told him to do or he would lose his job on board of the vessel and in that case, he would face financial difficulty. He has a wife and small children and an 88 year-old sick grandmother to take care of.

5. In Ng Kit Yuen the court considered that where the illegal immigrants were concealed in a place from which escape would have been difficult or the vessel is of poor maintenance or age in an unseaworthy condition, 9 years would be appropriate. Otherwise the sentence of 5 years indicated in R. v. Lam Kon Man Cr. App. No. 329 of 1990 would not have been inappropriate.

6. In R. v. Wong Yin Lung [1995] 1 HKCLR 151 the court considered 5 years an appropriate starting point where the accused was a captain or otherwise in charge of the vessel.

7. In the present case, the applicant was acting captain of the vessel. The three illegal immigrants were hidden in the fore hold. There was no life saving and fire fighting equipment on board. The starting point of 5 years imprisonment adopted by the judge could not be regarded as inappropriate. The judge accepted that the applicant did not carry these illegal immigrants for extra money and if not, the judge could have taken a higher starting point. The fact that the applicant committed the offence in order to keep his job is not a mitigating factor. There is no merit in this application for leave to appeal against sentence. The application must be refused. As there is absolutely no merit in the application, we order that 3 months of the time the applicant spent in custody shall not count as part of his sentence.