HKSAR v. Lee Kwai Wing
Read the full judgment text of CACC 56/2008 on BabelCite. This Court of Appeal judgment was delivered on 5 December 2008 before Yeung JA and Wright J.
Criminal law – sentencing – immigration offences – assisting passage of unauthorised entrants – aiding and abetting landing of illegal immigrants – unlawful remaining in Hong Kong – consecutive versus concurrent sentences – appellant was coxswain of unseaworthy wooden vessel carrying eight passengers from Shekou to Hong Kong – vessel sank and all were arrested near Tuen Mun beach – two passengers were unauthorised entrants from the Mainland and six were illegal immigrants from Pakistan or Bangladesh – appellant pleaded guilty to all three charges – starting point of 5 years for 1st charge held to be proper – whether 15-month sentence on 3rd charge should be wholly or partly consecutive to 40-month sentence on 1st charge – general principle from HKSAR v Tong Fuk-sing that unlawful remaining sentence should run consecutively to other offences – however, where conduct is part and parcel of the same incident with no clean break, consecutive sentences not automatically required – vessel had sunk making departure impossible – held that in special circumstances sentence on 3rd charge should be partly concurrent – additional term of 8 months imposed – total sentence reduced from 55 months to 48 months – appeal allowed to that extent.
Legal issues: Whether sentence for unlawful remaining should run consecutively to sentence for assisting passage of unauthorised entrants
Outcome: Appeal against sentence allowed to the extent that the sentence on the 3rd charge is reduced from 15 months to 8 months consecutive; total sentence reduced from 55 months to 48 months.
Cited by 10 cases · Cites 2 cases
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CACC 56/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 56 OF 2008 (ON APPEAL FROM DCCC NO.1203 OF 2007) ---------------------- BETWEEN
---------------------- Before: Hon Yeung JA and Wright J in Court Date of Hearing: 26 November 2008 Date of Judgment: 5 December 2008 ----------------------- J U D G M E N T ---------------------- Hon Yeung JA (giving the judgment of the Court): Introduction 1.On 4 November 2007 at 0648 hours, the appellant and eight passengers, having alighted from a sinking wooden vessel with an inboard engine about five hours earlier, were arrested near a beach in Tuen Mun. The appellant was the coxswain of the vessel. 2.The appellant admitted that he boarded the vessel in Shekou with eight passengers, intending to “sneak” into Hong Kong. He said Brother Wing, the “snakehead”, instructed him to steer the vessel to take the eight passengers to Hong Kong, and agreed to charge him RMB 1,000 less for the trip. He said each of the eight passengers paid Brother Wing RMB 2,000 whereas he only had to pay RMB 1,000. 3.Two of the passengers were unauthorized entrants from the Mainland whereas the other six passengers were illegal immigrants from Pakistan or Bangladesh. 4.The vessel was not in a safe condition, as there was no fire-fighting appliance, no life saving appliance and no navigation light. 5.On 25 January 2008, the appellant appeared before District Court Judge Chua on an indictment consisting of the 1st charge of assisting the passage to Hong Kong of unauthorised entrants, the 2nd charge of aiding and abetting the landing of illegal immigrants in Hong Kong, and the 3rd charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed illegally. 6.The appellant pleaded guilty to all three charges and was sentenced to respective terms of 40 months, 16 months and 15 months’ imprisonment. 7.The judge ordered the 40 months on the 1st charge to run concurrently to the 16 months on the 2nd charge, but consecutively to the 15 months on the 3rd charge. The total sentence was 55 months’ imprisonment. 8.The appellant sought leave to appeal against sentence on the basis that the sentence was excessive. 9.On 14 August 2008, Stuart Moore VP granted leave to the appellant to appeal against sentence, but only in respect of whether the 15-month sentence on the 3rd charge should be wholly or partly consecutive to the 40-month sentence on the 1st charge, or whether it should be wholly concurrent. Grounds of Appeal 10.Ms Sabrina See, on behalf of the applicant, submits that the offences in question were all immigration related offences and were committed in the same incident, and therefore should attract concurrent sentences. Ms See further argues that the total sentence of 55 months’ imprisonment is manifestly excessive. The Respondent’s Position 11.Mr Derek Lai, for the respondent, relying on R v Ho Siu-lun [1987] HKLR 1086 and HKSAR v Wong Chi-kin CACC 357/2004, submits that the 5-year starting point for the 1st charge was a lenient sentence. Mr Lai emphasizes the aggravating factors that, (1) the vessel was not seaworthy, and (2) the vessel was carrying a large number of illegal entrants. 12.Mr Lai refers to HKSAR v Tong Fuk-sing [1999] 3 HKC 332 in which the Court of Appeal held that the sentence for unlawful remaining should run consecutively to the sentence for a burglary offence committed by the illegal immigrant. Mr Lai further refers to HKSAR v Cheung Siu-wai CACC 426.2003 (involving an illegal immigrant who committed an offence of robbery during his unlawful stay in Hong Kong), in which Yuen JA commented:
13.Mr Lai argues that in the absence of any strong humanitarian reason, the judge was right to impose a consecutive sentence on the 3rd charge. Discussion 14.If a defendant, having entered and remained in Hong Kong illegally, commits another offence, the sentence for the “unlawful remaining” charge should run consecutively to the sentence for the other offence. The offences are separate and distinct. 15.If a defendant, having assisted “illegal immigrants” to come to Hong Kong, chooses to stay on, it may well be fair to impose consecutive sentences on the offences of “aiding and abetting the illegal immigrants” and “unlawful remaining”, as the defendant, having committed the earlier offence, could have left Hong Kong immediately without committing the latter offence. 16.On the other hand, by assisting the passage to Hong Kong of “unauthorised entrants” and by aiding and abetting the landing of“illegal immigrants” in Hong Kong, the appellant may necessarily himself enter and remain in Hong Kong, albeit for a brief period. The fact that the vessel had sunk meant that the appellant could not have left Hong Kong even if he had wanted to. 17.It can therefore be argued that when the appellant was arrested for remaining unlawfully in Hong Kong (the conduct complained of in the 3rd charge), he was still in the process of assisting the “unauthorised entrants” in their passages to Hong Kong (the conduct complained of in the 1st charges) and aiding and abetting the landing of “illegal immigrants” in Hong Kong (the conduct complained of in the 2nd charge). That being the case, there could well be no “different conduct” involved in the 1st, 2nd and the 3rd charges. 18.The conduct constituting the three charges was all part and parcel of the same conduct, despite the appellant’s admission that he had intended to come to Hong Kong himself as an illegal immigrant. 19.In our view, unless there is a clean break between assisting the “unauthorised entrants” in their passages to Hong Kong and aiding and abetting the landing of “illegal immigrants” in Hong Kong, and “unlawful remaining” in Hong Kong, the sentences for the offences need not be completely consecutive. 20.We have been told of a prosecution policy of repatriating without prosecution a first offender who contravenes the offence of unlawfully remaining in Hong Kong…after having landed illegally unless, whilst remaining, he commits another offence. 21.The 1st and 2nd charges were committed before the applicant committed the 3rd charge. Theoretically speaking, the applicant in fact had not committed another offence whilst unlawfully remaining in Hong Kong, and therefore, in terms of the policy, he should not have been prosecuted for the 3rd charge. 22.We do not find it necessary to decide if there was a departure from the prosecution policy, and if so, whether such departure justifies a concurrent sentence or a more lenient sentence. 23.The 5 years adopted by the judge for the 1st charge is a proper starting point. The judge was right to impose a concurrent sentence of 16 months’ imprisonment on the 2nd charge. 24.In the special circumstances of the present case, we are persuaded that the sentence on the 3rd charge should be partly concurrent to the sentences on the 1st and 2nd charge. We are of the view that the 3rd charge should attract an additional term of 8 months. 25.We therefore order that, of the 15 months imposed on the 1st charge, only 8 months needs to be served consecutively to the 40-month sentence on the 1st and 2nd charges. The total sentence on the appellant is reduced from 55 months to 48 months. 26.The appellant’s appeal against sentence is allowed to the extent indicated.
Mr Derek Lai of the Department of Justice for the Respondent. Ms Sabrina See assigned by the Director of Legal Aid for the Appellant. |
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