Lam Heung-wing v. The Queen

CACC000651/1979

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Coram: Roberts, C.J.

Date of Judgment: 24 July 1979

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JUDGMENT

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1. LAM Heung-wing was convicted on his own plea of aiding and abetting an illegal immigrant to remain in Hong Kong.

2. The evidence was that the appellant (and the first defendant at the trial who has not appealed) decided, when an illegal immigrant arrived at the first defendant's hut and was taken in by him, to get in touch with the relatives of the illegal immigrant by telephone. They did so and asked for a sum of $2,000. The two defendants later met a relative of the illegal immigrant at a restaurant. After some bargaining a fee of $1,250 was agreed upon. This sum was paid to the appellant.

3. As the illegal immigrant was being taken to his relative's home, the party was stopped by the police and arrested. The appellant, who is not yet eighteen, pleaded guilty before the magistrate and admitted that he had done this from greed and knew that it was wrong.

4. Mr. Lo, who said everything that could properly be argued on behalf of the appellant, has drawn my attention to two earlier cases: The Attorney General v. Tsang Sung⁽¹⁾ in which the Court of Appeal expressed the opinion that, except in the rarest of cases, the offence of aiding and abetting the remaining of an illegal immigrant was one which deserved an immediate custodial sentence. The court commented that sentences of imprisonment of six months and over for this offence had been frequently upheld by the court. In that case, however, a sentence of two months' imprisonment was substituted, the court taking into consideration the fact that it was an application for review and not an appeal.

5. I was also referred to Tang Kwoon-sun v. R.⁽²⁾ in which the Chief Justice, on an appeal from a decision of a magistrate, reduced a sentence of twelve months' imprisonment to six months' imprisonment for the offence of aiding and abetting an illegal immigrant. In that case the appellant had accepted the sum of $1,000.

6. The Chief Justice observed that his attention had been drawn to several cases, the effect of which was that the court would only impose a sentence of twelve months' imprisonment or more in very serious cases.

7. Yesterday, in Chau Yu-sang v. R.⁽³⁾ I heard an appeal against conviction and sentence for aiding and abetting the remaining of illegal immigrants. In that case, a man of twenty-five had assisted in the remaining of four illegal immigrants from China. There was no evidence that he had received any money for doing so. The magistrate imposed a sentence of twelve months' imprisonment, although the defendant had a clean record except for one very minor offence. I upheld that sentence.

8. As I indicated to Mr. Lo, the attitude of courts as to the seriousness of particular kinds of offences changes. In my view the magistrate was entirely correct in taking into account the very serious nature, in present circumstances, of offences involving illegal immigrants. Rather than twelve months' imprisonment being reserved only for very serious cases of this kind it should, in my view, be the ordinary sentence for such cases, with serious ones attracting considerably more severe punishment.

9. In this case the appellant took part in assisting illegal immigrants for gain. I have no doubt that it was only his age which dissuaded the magistrate from imposing a substantial prison sentence on him. A detention centre order was a proper sentence in this case and the appeal against sentence is dismissed.

Representation:

Y.S. Lo of (Chow & Howell) for appellant

Cross for crown/respondent

(1) 1977 H.K.L.R. 594

(2) C.A. 991 of 1978

(3) C.A. 615 of 1979