Lam Chun-fai and Others v. The Queen
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CACC000074/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 74 OF 1972 -----------------
----------------- Coram: Briggs J. Date of Judgment: ----------------- JUDGMENT ----------------- 1. On 4th January 1972 six persons, four of whom are the appellants pleaded guilty to various offences in connexion with the illegal immigration of 14 persons from Macau to Hong Kong. It is not in dispute that this was done for monetary reward. 2. The second appellant, WONG Kim-on, was the owner of a trawler M 62971Y which was the means used to transport the immigrants. This occurred on the night of the 1st and 2nd January. The trawler was manned by the second appellant, and two other persons who have not appealed. 3. The second appellant was convicted of aiding and abetting the illegal immigration of the 14 illegal immigrants. In addition he was convicted of being the owner of the trawler used, and of aiding and abetting one of the illegal immigrants to remain in Hong Kong. He was sentenced to one year's imprisonment on each of the first two charges and to 9 months on the third charge. All sentences to be concurrent. In addition an application is to be made for the forfeiture of his trawler which I was told, would almost certainly end in its destruction. 4. The other appellants were all convicted of a single offence of aiding and abetting an illegal immigrant to remain in Hong Kong. Each appellant was sentenced to 9 months imprisonment. 5. They have all appealed against these sentences. Each of the appellants has a clean record. And all are young men. 6. The magistrate in passing sentence stated that he did so as a deterrent. The offences of the second appellant are of course more serious than those of the other appellants. The offence of aiding and abetting an illegal immigrant to remain in Hong Kong consisted in these cases of escorting such a person to a pre-arranged rendezvous with his relatives or friends. 7. There is a considerable amount of public sympathy with those who assist persons seeking residence in Hong Kong from Mainland China, from where originally the illegal immigrants in this case had come. 8. These are all first offences and committed by persons with clean records and the appellants freely admitted their offences. I do not think that a deterrent sentence was called for. It is true that the appellants charged for the service they provided and that may be held by some to be morally wrong. However it is the way of the world, particularly of the world of Hong Kong. There is no evidence that any one of these appellants has been engaged in this sort of activity before. 9. In my view the proper sentence for a first offence of the nature of these offences is a suspended sentence of imprisonment. I agree with the magistrate that a fine would probably not be a proper sentence. But a suspended sentence of imprisonment will act as a very real deterrent so far as the appellants themselves are concerned. 10. I also agree with the magistrate that the offences committed by the second appellant were more serious than those committed by the other appellants. But there is the matter of the forfeiture of the trawler. This is the equivalent of depriving the second appellant of his means of livelihood, as he is a fisherman by occupation: a very severe loss indeed. 11. I therefore allow those appeals in part and order the sentences passed by the lower court to be suspended as from today's date for a period of two years.
Representation: R. Fok (J. Ip & Co.) for 1st, 2nd and 4th appellants, |