Yeung Shing-kang and Another v. The Queen
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CACC000699/1979
----------------- Coram: Huggins, J.A., Cons and Yang, JJ. Date of Judgment: 15 November 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. Although this appeal comes on for hearing two days after the appeal of Lee Ching-chen in the Huey Fong trial, these Appellants' trial in fact took place first. Speaking for myself I have the utmost sympathy with the learned judge in the difficulty in which he was faced when he came to decide the proper sentence upon these two Appellants. 2. The two cases were very similar. All I need say is that in the present case the 1st Appellant was a boatswain, the 2nd Appellant signed on as chief officer, but in actual fact was qualified as a radio operator and because of the seasickness of the radio operator he carried out the duties of radio operator for much of the voyage. We thus have, on the one hand, a boatswain who was in a much inferior position to that of the appellant in the Huey Fong case and a chief officer cum radio operator who was in a senior position to that of the third officer in the Huey Fong, and it is perhaps material that not only was the 2nd Appellant a man in considerable authority, having signed on as No. 2, but by virtue of his technical knowledge he did have, if he chose to use it, a means of communication with the outside world. That said, it must be recognized that both these Appellants were in a position of considerable difficulty and doubt. They had no knowledge of what was afoot when they sailed from Macau. They sailed in the direction of Manila, one of them having been told they were bound for Indonesia. It was only then that the ship turned and sailed for Vietnam, the master knowing full well all along what was planned. 3. As the learned judge said, there was little that they could do, but perhaps he might not have expressed the matter quite so firmly had he known that the 2nd Appellant had signed on as chief officer, though it must be recognized that a man who finds himself on board a ship at sea, and a ship which then turns out to be engaged in unlawful activities, is in a position of some peril if he objects to what is being done. This the learned judge had in mind. He passed sentences of fifteen months' imprisonment on both these Appellants. 4. In the Huey Fong case the court reduced a sentence of fifteen months on the third officer to a sentence which allowed for his immediate release, which probably amounted to a sentence in the region of nine to twelve months. 5. We are told that both these Appellants have clear records and both have fully cooperated with the police. Lee Ching-chen, although he did not in fact receive any benefit, was promised a share in the profits of the voyage. There was no evidence in the present case that these Appellants would receive anything over and above their due wages. 6. We, for the same reasons as moved the court in Lee Ching-chen's Case, feel that a measure of leniency can properly be shown. We recognize that the 1st Appellant has been in prison for a shorter period than had Lee Ching-chen, but then he is in a position of less authority, and we think that justice will be done if we make the same order in respect of him as was made in Lee's case. We will allow the 1st Appellant's appeal and sentence him to such term of imprisonment as will secure his release today. 7. We take the view that there ought to be some distinction between a man in the position of a boatswain and a man in the position of the 2nd Appellant, although their difficulties may, to a large extent, be similar. Authority carries both privileges and responsibilities. We think that the learned judge rightly had in mind the importance of deterring even persons in the position of the 2nd Appellant from going along with criminal activities though they may not have been aware of them from the outset. Nevertheless, we think that in his case also a measure of leniency can be shown. We shall allow his appeal and substitute a sentence of eight months' imprisonment. 15th November 1979. |