Tse Chan-lit and Another v. The Queen
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CACC000590/1978
----------------- Coram: Leonard, J. in Court. Date of Judgment: 1st August 1978 ----------------- JUDGMENT ----------------- 1. This is an appeal against sentence only. The appellants having each been sentenced to six months' imprisonment for aiding and abetting illegal immigrants to remain in the Colony. These cases are invariably difficult and must cause the sentencing tribunal much anxiety. On the one hand there is a reluctance to punish any actions which are arisen out of kindness of heart and on the other there is a necessity to protect the economy of Hong Kong from what has for years been and still remains a great problem that is to say the problem of population. 2. In this particular case the first appellant received three illegal immigrants as the result of their knocking on his door in the small hours of the morning. He took them in and he got in touch with the "contact telephone number of one of the illegal immigrants". It appears to be a recognised feature of these cases that illegal immigrants come equipped with a contact telephone number and this is apparently a custom which is not unknown. Be that as it may, the first appellant did not do what he did for reward. It was only after the second appellant had actually come in answer to the telephone call that he was offered a reward. He refused it and it was eventually pressed upon his young son. This appellant stated in mitigation that he attempted to return it but this is not an agreed fact. A strong case in mitigation has been made out before me on behalf of this young man with particular reference to tragic events which overtook him in the last week due to the recent storm. These, of course, were not matters of which the learned magistrate had knowledge when he passed sentence but the very hut in which he sheltered the immigrants has been destroyed. 3. As to the second appellant he was what is known in translation as a "god-father" of one of the three illegal immigrants. He assisted all three on that basis. This seems to me to have been the act of a decent man. There was no question of his being engaged for the purposes of reward and although he was not strictly speaking a relative of any of the three he helped all three equally. He was however reimbursed for his help to one by a payment from an aunt of that particular illegal immigrant. Here there was as is conceded by the Crown no pre-arrangement. There is no element of reward in the sense of the matter being a profitable business. At the same time the first appellant as a resident of the New Territories close to the border must be well aware of the frequency with which this offence is committed. I consider that the learned magistrate was right in considering that an immediate custodial sentence was appropriate in his case. The immediate custodial sentence that was appropriate in his case was to my mind a shorter one than one of six months. In Application for Review No. 6 of 1977 the Full Court said that:
In that particular case it imposed a custodial sentence of two months' imprisonment. There however an agreement had been reached by the uncle of an illegal immigrant and the respondent that the respondent would be paid $1,000 for taking the illegal immigrant to his uncle. That was a far cry from the facts in this particular case and a such more serious offence. Opportunists who seek to make money by means almost of blackmail from the plight of illegal immigrants are deserving of condign punishment. This was not such a case. In all the circumstances of this particular case I should have thought that the appropriate sentence for the first appellant was one of one month's imprisonment. In view however of the misfortunes which he has suffered recently in the last three days I consider that I may with propriety if not with legal correctness reduce this to twenty days' imprisonment. The result of this will be to effect his immediate release. 4. The second appellant's case in a way presents more difficulty but I have come to the conclusion that an immediate custodial sentence was not appropriate in his case. It would not have been considered appropriate had the person who was described as his "goods ...(illegible) been the sole illegal immigrant helped. The fact that two other were helped and that he received come reimbursement as a result of having help ...(illegible) my mind does not change the issue. He stood in the position of a relative to one of the illegal immigrants and it is because of that that I do not think that an immediate custodial sentence was appropriate in his particular case. I should have thought the proper sentence to be imposed was (if he could afforded it to pay it) again a substantial fine. In saying all this I do not mean for one moment to detract from what was said in Application for Review No. 6 of 1977 namely that the offence is one which excepted in the rarest of cases is deserving of an immediate custodial sentence. I consider that where a relative or one who stands in the position of a relative is concerned the rare case has occurred. This appellant also has already served 20 days in prison and I consider that it is appropriate since I consider that the original sentence should have been a fine to order his release forthwith. Both appeals are accordingly allowed and the sentences are reduced to such sentence of imprisonment as it will result in the immediate release of the appellants.
Representation: Mr. H.C. Wong (Woo, Kwan, Lee & Lo) for 1st appellant. Mr. Stansfield of Gunston & Chow for 2nd appellant. |