HKSAR v. Li Chih Hui

CACC189/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 189 OF 2008

(ON APPEAL FROM DCCC NO. 338 OF 2008)

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Before : Hon Stuart-Moore VP and Saw J

Date of Hearing : 19 February 2009

Date of Judgment : 19 February 2009

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J U D G M E N T

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Saw J (giving the judgment of the Court):

1.On 20 May 2008 the applicant appeared in the District Court before Deputy Judge C.P. Pang charged with two offences :

(1)     assisting the passage to Hong Kong of unauthorized entrants contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115, and

(2)     possession of dutiable goods contrary to section 17(1) of the Dutiable Commodities Ordinance, Cap. 109. 

He pleaded guilty to both charges and was sentenced to be imprisoned for a total of 4 years and 3 months. 

2.This is his application for leave to appeal his sentences. 

The summary of facts

3.On the morning of 13 March 2008 at about 7:10 a.m. a vessel was observed to enter Hong Kong waters in the vicinity of Lantau Island.  Police launches were ordered to intercept this vessel which they attempted to do by flashing search lights at it.  This did not have the desired effect but did reveal that the coxswain was throwing something into the sea.  Eventually the vessel was intercepted near Cha Kwo Chau and on board was the coxswain (the applicant), and three unauthorized Vietnamese entrants.  In the meantime other police officers recovered the items thrown overboard from the vessel.  These were in fact bags which it was later determined contained 33,000 cigarettes with a dutiable value of $26,532. 

4.The applicant admitted when interviewed under caution that he had been paid RMB800 to bring the three Vietnamese and the cigarettes into Hong Kong.  He told the police that he did not realize that the men were unauthorized entrants. 

5.As to the vessel itself, the summary of facts admitted by the applicant included the following :

“  Chau To-yui, Ship Inspector (PW10) examined the vessel to establish its seaworthiness on 19^th April 2008.  The vessel was a GRP sampan (P4 type).  It was 6.52 metres in length and 1.97 in breadth.  The main hull structure was in normal condition.  There were no fire fighting or life saving appliances equipped on board.  There were no navigation lights fitted on board for night operation.  PW10 [the inspector] is of the opinion that the vessel was not appropriately equipped for navigation on sea.”

6.The judge took a starting point for sentence for the 1^st charge of 6 years’ imprisonment.  This he discounted for the applicant’s plea of guilty to 4 years’ imprisonment. 

7.The offence, we point out, carries a maximum of 14 years’ imprisonment and a fine of $5 million.  

8.For the 2^nd charge the judge adopted a starting point for sentence of 9 months’ imprisonment.  This he discounted for the applicant’s plea of guilty to 6 months’ imprisonment.  The judge ordered that 3 months of the sentence on the 2^nd charge should be consecutive to the sentence of 4 years’ imprisonment he imposed on the 1^st charge. 

The application

9.Mr McGowan on behalf of the applicant submits that the starting point for sentence which the judge adopted was in the case of both charges manifestly excessive.  

10.Mr McGowan submits that the generally applicable tariff where the accused is the captain of the vessel or the person in charge is a starting point of 5 years’ imprisonment and he refers us to R v Wong Yiu Lung [1995] 1 HKCLR 151, 153 and R v Pang Wing [1996] 1 HKC 624, 626.  It is likewise accepted by Mr McGowan that aggravating factors may permit the sentencer to increase that starting point.  In HKSAR v Wong Chi Kin, CACC357/2004 (unreported), Woo VP observed at paragraph 12 :

“… Where the accused was the captain of the vessel or the person in charge or assisting in the operation of the organisation of the venture, the appropriate starting point is 5 years’ imprisonment : R v Wong Yin-lung [1995] 1 HKCLR 151 at 153 and R v Pang Wing [1996] 1 HKC 624 at 626H and 627A.  The following situations will be considered as aggravating factors increasing the sentence from the 5 years starting point in respect of the person in charge of the vessel or of one who was in some way actively involved in the circumstances of the aggravation :

(a)   The unauthorised entrants or illegal immigrants were concealed in a place in the vessel from which escape would have been difficult : R v Ng Kit-yuen [1992] 1 HKCLR 170, at pp 173-174.

(b)   The vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering the passengers : also see Ng kit-yuen, at p 174, and HKSAR v Tsui Kwong Ming, CACC 247/2004, 14 December 2004.

(c)   The vessel was carrying a large number of illegal entrants : Wong Yin-lung, at p 153, line 34.

(d)   Where the vessel was grossly overloaded, creating a gravely hazardous operation : R v Chan Shing Chun, Crim App No 390 of 1995, 9 November 1995.

(e)   The degree of danger that might be involved caused by the age and physical condition of the unauthorised entrants, as greater risk in the event of a mishap might more easily risk the life of the very young, very old and the infirm : R v Lo Shui Lun, Crim App No 109 of 1995, 17 August 1995 and Tsui Kwong Ming.”

11.Whilst it is accepted on behalf of the applicant that it is appropriate to set a higher starting point for sentence than 5 years in certain cases.  This was not such a case.  

12.In The Queen v Lo Shui Lun, CACC109/1995, a case which was factually very similar to the instant case, the Court of Appeal held that a starting point for sentence of 7 years’ imprisonment was manifestly excessive and reduced it to 5 years.  In that case the applicant had been the helmsman of a motorized sampan with two unauthorized entrants on board.  The sentencer had adopted a starting point for sentence of 7 years’ imprisonment because the vessel was unseaworthy in the sense that there was no life saving or fire fighting equipment on board and the vessel carried no navigation lights.  This was we observe very similar to the condition of the vessel the applicant in the instant case was operating.  The Court of Appeal in Lo Shui Lun referred to the following observations taken from R v Ng Kit Yuen [1992] 1 HKCLR 170, 173 :

“  Sentencing courts should, we are satisfied, give weight to the following circumstances which have not, heretofore, played a part in the assessment of sentence :

(i)    were the illegal immigrants concealed in a place from which escape would have been difficult?

(ii) was the vessel by reason of poor maintenance or age in an unseaworthy condition?

13.  We are satisfied that the sentence of five years after trial indicated in The Queen v. LAM Kon-man (supra) has no application to cases in which the above considerations play a part.  Where there is a grave risk to the lives of illegal immigrants, knowingly undertaken for gain, the offence is one of considerably more gravity.  We are satisfied that where both of the circumstances referred to above exist, depending upon the number of immigrants involved and the degree of danger, a starting point as high as nine years would be appropriate. …”

13.The Court of Appeal in The Queen v Lo Shui Lun (supra) accepted that “… this kind of smuggling of human cargo inherently involves some danger to life which is already taken into account by the five-year starting point ...”.  The court there considered that the absence of navigation lights and fire fighting equipment were matters which the five-year starting point accommodated given the circumstances which usually surround the commission of this offence.  In that case the court was concerned with the absence of life saving equipment but, given the fact that the vessel was otherwise sound and the illegal entrants were few in number and able-bodied men it was not prepared to say that an upward adjustment from a five-year starting point was merited.  

14.We consider that the same considerations apply in the instant case and that the proper starting point for sentence for the 1^st charge should have been 5 years’ imprisonment.  Giving a one third reduction for his plea of guilty, the applicant’s sentence is reduced to 3 years and 4 months’ imprisonment. 

Charge 2

15.The judge, when fixing a starting point for sentence referred to the unreported decision of HKSAR v Mok Chun Wing, HCMA727/2000, in which some of the factors to be taken into account in cases of this kind are set out. 

16.We observe the maximum penalty for this offence is a term of 2 years’ imprisonment and a fine of $1,000,000.  We are satisfied that the approach taken by the judge of adopting as he did a starting point of 9 months cannot be criticised.  The applicant was obviously aware of the seriousness of the offence as his attempts to discard the cigarettes when he was detected demonstrate. 

17.No issue is taken on the applicant’s behalf with the decision of the judge to order that 3 months of the sentence on the 2^nd charge should be consecutive to the sentence on the 1^st charge.  

18.Treating the hearing of the application for leave to appeal as the appeal itself we allow the appeal to the extent that the sentence of 4 years’ imprisonment on the 1^st charge is reduced to 3 years and 4 months.  The sentence on the 2^nd charge remains unaltered and the consecutive element in that sentence of 3 months’ imprisonment will also remain unchanged.  Accordingly the overall sentence now to be served is 3 years and 7 months’ imprisonment.  

Ms Mary Sin, SADPP of the Department of Justice, for the Respondent

Mr James H.M. McGowan, instructed by Messrs Cheng & Wong,  assigned by Director of Legal Aid, for the Applicant