Chan Shing v. The Queen

CACC000573/1980

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Coram: Power, J.

Date of Judgment: 7th August, 1980

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JUDGMENT

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1. In this matter, the appellant originally pleaded guilty to a charge of aiding and abetting two illegal immigrants to remain in Hong Kong without the authority of the Director of Immigration. He was convicted upon his plea of that charge and sentenced to an imprisonment for twelve months.

2. The facts reveal that at 9 a.m. on the 21st April, 1980, the son of the appellant received a telephone message from an unknown Chinese male telling him that his cousin and another person were waiting for him near the Sham Chung School in Sai Kung. The son accompanied by his father, the appellant, and his father's nephew waited at 3 p.m. that day at the school and were introduced by the unknown Chinese male to the two Chinese males who they, by then, knew were illegal immigrants. The accused gave the two clothes and they left the vicinity. When they arrived at Yung Shu Au Road, they were apprehended by the police.

3. It has been urged by Mr. Jenkins who appears for the accused that the learned magistrate failed to give full weight to the circumstances of this offence when imposing the sentence of imprisonment for one year. It is conceded that the normal sentence for aiding and abetting the remaining of illegal immigrants is imprisonment for twelve months. However, a perusal of the cases in which such a sentence has been imposed reveals either that the offender has received money for so doing or, in the cases where it has not been established that he received money, that he has not been able to establish any real instigating circumstance to explain why he assisted the illegal immigrants. I am satisfied that a distinction must be drawn between a person who assists illegal immigrants, albeit without payment of money being established, but who are unable to give any real instigating circumstance as to why he did so and a person who assists illegal immigrants and who does establish a real instigating circumstance e.g. that he assisted solely because he felt under a familial obligation to do so.

4. In the present case, I accept that the appellant was involved only because he was helping a relative in circumstances where he felt a familial obligation and that he had no thought of financial reward. I am satisfied further that, as far as the appellant was concerned, this was an isolation occurrence.

5. The appellant is fifty-one years of age. He is a person of good character with steady employment and is married with a wife and three children. I am satisfied that all the circumstances take this offence out of the tariff area of twelve months' imprisonment and that the sentence imposed should have been one of imprisonment for six months. I therefore order that the sentence be varied accordingly.

Representation:

Mr. M. Jenkins of Michael Jenkins & Co. for appellant.

Mr. Martin, S.C.C. for Crown.