Chan Chun-lam v. The Queen

CACC000826/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 826 OF 1980

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Coram: Hon. Silke, J. in Court

Date of Judgment: 28th October, 1980

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JUDGMENT

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1. The appellant was convicted on his plea in San Po Kong Magistracy of the offence of what is now colloquially called aiding and abetting an illegal immigrant. He was sentenced to a period of twelve months imprisonment.

2. Again that sentence he appealed I allowed the appeal in part and stated I would set down in writing the oral reasons given for so doing. This I now do.

3. One Ko Kam, on the admitted facts the brother in law of the appellant, went to see the appellant on the 6th August and told him that the wife of the appellant together with another girl - the one referred to in the charge - had "sneaked" into Hong Kong.

4. The appellant and Mr. Ko, for the girl was Mr. Ko's betrothed, went to Sai Kung to look for them.

5. Later that day the appellant was arrested at Clearwater Bay Road walking together with the girl. Mr. Ko, who was not arrested, was walking some little distance in front.

6. In mitigation in the Court below the appellant, who was unrepresented, said that he had originally gone there to collect his wife.

7. In this Court Mr. Hoosen, who appeared for the appellant on the instructions of Rowdget W. Yong & Co., tells me that his instructions are that the appellant's wife did in fact come to Hong Kong and was at Sai Kung on the 6th August. Indeed she was, I was told, present in Court today.

8. Mr. Hoosen very fairly conceded that in the normal run twelve months imprisonment is the tariff for this offence, which is, in the context of present day Hong Kong, a serious one.

9. The learned trial Magistrate accepted, as I do, that no money was involved and that no-one was instigated to commit any offence.

10. He then went on ".... and the only favourable factor missing was the absence of any close relationship with the illegal immigrant". Factually this is so but, as Mr. Hoosen pointed out, the motivation for the appellant to go to Sai Kung in the first place was to find his own wife, and the girl is the finance of his brother in law.

11. My Brother Power in Chan Shing v. the Queen C.A. 573/1980 (unreported) had this to say in respect of a similar charge:

"I am satisfied that a distinction must be drawn between a person who assists illegal immigrants, albeit without payment of money being established, but who are unable to give any real instigating circumstance as to why he did so and a person who assists illegal immigrants and who does establish a real instigating circumstance e.g. that he assisted solely because he felt under a familial obligation to do so."

12. I would with respect adopt that passage and think that the expression "familial obligation" to cover the circumstances here.

13. But the offence remains a serious one. In the event I allowed the appeal to the extent that the sentence is varied from one of twelve months imprisonment to one of six months.

Representation:

Mr. Hoosen (Rowdget W. Young & Co.) for Appellant

Mr. Chandler for Crown/Respondent