HKSAR v. Lam Shui Sai

CACC 402/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 402 OF 2007

(ON APPEAL FROM DCCC NO. 725 OF 2007)

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BETWEEN

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Before:  Hon Stuart-Moore VP, Beeson and Wright JJ in Court

Date of Hearing:  17 September 2008

Date of Judgment:  17 September 2008

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J U D G M E N T

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Hon Beeson J (giving the judgment of the Court):

1.The Appellant was charged with assisting the passage to Hong Kong of unauthorized entrants, contrary to section 37D (1)(a) of the Immigration Ordinance, Cap. 115.  He was found guilty after trial by Deputy District Judge Ada Yim and was sentenced to 5 years 6 months’ imprisonment.  He filed an application for leave to appeal against both conviction and sentence.

2.We noted however that the Appellant appeared to have dropped his application for leave to appeal against conviction, because in two letters he wrote to the court prior to the appeal hearing, he admitted bringing a vessel to Hong Kong in the circumstances alleged by the prosecution.  He confirmed in court that he was not pursuing his application for leave to appeal against conviction.  As a result that application stands dismissed.

3.The facts, as the judge found from the evidence, were that marine police saw a sampan sailing without navigation lights at 10.30 pm and when it refused to stop were involved in a pursuit of the sampan, captained by the Appellant.  Warnings and flares were ignored by the sampan crew.  When the sampan was stopped, eventually, 10 people were found lying on top of one another in 3 compartments on the boat; 8 Vietnamese women and 2 mainland men, all of whom were found to be illegal immigrants.  The judge decided after trial that the Appellant was the steersman.

4.An examination of the sampan was carried out by a Ship Inspector from the Marine Department.  This showed that the sampan measured 7 metres long by 2 metres wide; the hull was found to be in poor condition; it had no firefighting or lifesaving appliances, nor any navigation lights for night navigation.  Therefore the sampan could not be considered equipped for navigation at sea.

Reasons for Sentence

5.When sentencing, the judge had in mind R v Lam Kon-man Crim App 329/1990 (unreported) where it was held that the person in charge of a vessel in which unauthorised entrants are carried, should receive a sentence of five years’ imprisonment after trial.

6.That starting point should be increased if there was evidence of concealment of the unauthorised entrants, or if the vessel was unseaworthy and, where both circumstances existed, a starting point as high as 9 years could be appropriate.  The judge considered that HKSAR v Tsui Kwong Ming CACC 247/2004 had a factual basis similar to the instant case.  In Tsui a starting point of 6 years was adopted and on the basis of the similar facts, the judge took a starting point of 6 years’ imprisonment.

7.The Appellant is aged 51 and he is a mainland citizen with a clear record in Hong Kong.  He has three children by his divorced wife and the children were said to be looked after by their grandmother who, herself, required regular medical attention.  The Appellant was the sole breadwinner and had formerly worked as a construction site worker.  He sought leniency from the court.  None of his personal details amounted to cogent mitigation for this offence.

8.The judge gave a reduction of 6 months from the starting point of 6 years to acknowledge that the Appellant had admitted a substantial part of the prosecution case which, in her opinion, had saved court time.  In our view such a reduction was wholly unjustified, as any saving of time would be minimal and in a case of this kind was not appropriate in any event.

9.After considering the evidence and the judge’s Reasons for Sentence, we are satisfied that this sentence is neither excessive nor wrong in principle.  The judge took into account all matters relevant to sentence and imposed a sentence that recognised the serious nature of this particular transgression.

10.The application is dismissed.

Mr John Reading, SC, DDPP and Mr Alvin Chui, PP of the DPP, for the Respondent

Applicant LAM Shui-sai, acting in person