The Queen v. Chan Ka Wah
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CACC000118/1989
--------------------- Coram: Hon. Yang, C.J., Silke, V.-P. & Power, J.A. Date of Hearing: 25 October 1989 Date of Judgment: 25 October 1989 ----------------------- J U D G M E N T ----------------------- Power, J.A.: 1. The applicant Chan Ka Wah along with two others, Chan Kwok-fai and Chan Wai-ching, a female, faced a charge of assisting unauthorized entrants to remain in Hong Kong. The other two also faced a charge of arranging passage to Hong Kong of the same unauthorized entrants. 2. The charge was particularized as follows: that the three defendants did, between the 5th of December and the 14th of December, assist the three unauthorized entrants to remain in Hong Kong. The unauthorized entrants we will refer to hereafter as PW1, PW2 and PW3 and the defendants as D1, the applicant (D2) and D3. 3. The applicant pleaded not guilty to the charge and was, after trial in the District Court before Judge Roy, convicted and sentenced to imprisonment for two years. He now appeals against both conviction and sentence. 4. The facts upon which the Crown relied were that D1 and the applicant were Hong Kong residents and the unauthorized entrants were natives of Kwai Chow. D3, the female, was also an unauthorized entrant. A resident of Mainland China, a Mr. Wong Sheung-kong, who was PW4 gave evidence that he had met the three unauthorized entrants in China and that he was a friend of PW1. It was the evidence that about 3.30p.m. on 13th December 1988 PW1, PW2 and D1 went to the apartment of Mr. Wong at the Nathan Hotel. They later went down and had coffee in the coffee shop downstairs in the hotel and then had a talk. PW1 told Mr. Wong that she and the other two had spent $4,000 to come to Hong Kong and had been brought here in a vessel. She told him that after arrival they had been urged by the 3rd defendant, the female, to work as prostitutes and that if they wished to return to China they had to pay back money to D1 and the applicant who had arranged for their entry. In consequence of what was told to him, Mr. Wong informed the police. A meeting was then arranged on the 14th at the coffee shop where the police laid ambush and the three defendants were arrested. Police inquiries revealed that the three unauthorized entrants had woeked in Shenzhen where they had been introduced to D3. It was the evidence that on 2nd December they went to the Oriental Coffee Shop in Shenzhen and met D1 and D3 who told the three girls that they could obtain seaman's cards foe them to come to Hong Kong. They were also told that $60,000 would be required for obtaining Hong Kong identity cards after their arrival. At 4 o'clock on the 5th December PW1 said that she met the three defendants inside the Oriental Coffee Shop and that D3 gave the girls instruction as to the boarding of the vessel. It was the evidence that they were led to the vessel by D1 and that after boarding it sailed to the New Territories where it arrived at 22.00 hours. When D1 came to pick them up and took them in a taxi to Kowloon and that they stayed in rooms in Fuk Wing Street. It was the evidence that these rooms were rented by the applicant. After five nights they moved to other rooms which the evidence indicated were held under a lease signed by the applicant. They said that they and D3 lived in one room while D1 and the applicant lived in another room. Their evidence was that they were pressed for money and that it was in consequence of threats made to them that PW1 contacted Mr. Wong. 5. All of the defendants made cautioned statements. The trial judge admitted those of D1 and D3 but he held that of the applicant to be inadmissible. He was satisfied that the three unauthorized entrants PW1, PW2 and PW3 were, to use his words, "by and large, truthful witnesses". He rejected a suggestion by defence that they had been evasive when giving their evidence. He said in his Reasons for Verdict:
"The applicant in his testimony based his position upon an absence of knowledge that the girls were illegal immigrants. He allowed them to use one of his rooms in Fuk Wing Street in order to oblige his friend D1. He denied signing the lease of the Pei Ho Street premises and said that he was employed by the lst defendant to decorate those premises. He said he was asked to supply his identity card number for insertion on the lease along with his name because this had to be done if he was going to live there.". He later went on to say:
6. The trial judge was of the view that the applicant, by his evidence, was very far from proving the matters requires: to be proved for a defence under subsection (2) of Section 37DA of the Immigration Ordinance. 7. That section provides that no person shall be convicted of an offence of assisting an authorized entrant if he proves that he did not know, had no reason to suspect, and could not with reasonable diligence have discovered that the person he assisted was an unauthorized entrant. 8. In so far as the applicant suggested the onus was thrown on him, his suggestion is correct, but it was properly thrown on him by the operation of that section. The trial judge, however, was clearly quite satisfied to infer guilt without the use of the section. 9. The Grounds of Appeal, which he drafted himself, allege that the prosecution failed to offer sufficient evidence and that the trial judge failed to give careful consideration to the testimony of the witnesses. These grounds can be disposed of in a summary way. As to the first ground there was ample evidence even without the operation of the presumption. With the presumption brought into play, given the acceptance by the trial judge of the evidence of the three unauthorized entrants, the case against the applicant was overwhelming. 10. We turn to the second ground. The trial judge, it is clear from his Reasons for Verdict, did give careful consideration to the evidence and delivered a reasoned judgment dealing with the evidence that he had heard. 11. The applicant has today urged five more matters. 12. He again suggests that there were no sufficient evidence to prove that he had knowledge that the three girls were unlawful entrants. We have disposed of that ground. 13. He asks us to look again at the evidence which he submits shows that no one had told him directly that the girls were unlawful entrants. the judge was perfectly well aware of this and did not suggest that there was any such direct evidence. 14. He suggests, thirdly, that there were inconsistencies in the evidence of the three girls. It is true that there were but these were inconsistencies of no great moment and the trial judge bore them in mind when he made his assessment as to their credibility. 15. He suggests, fourthly, that he could not understand Mandarin and that this should have been taken into account when assessing whether or not he would have had knowledge of the status of the unauthorized entrants. The judge again was perfectly well aware of this and was nonetheless satisfied to infer as he did. 16. He suggests, fifthly, that there was no evidence to indicate that he had kept the girls detained. the tenor of the evidence accepted by the judge when it is read as a whole suggests, however, that he was deeply implicated in controlling the girls during their stay in the two premises. 17. Nothing has been raised today that occasions us any doubt as to the propriety of the conviction and the application to appeal against conviction is therefore refused. Sentence 18. The applicant in his Grounds of Appeal against Sentence urges that, as D3 was given one and a half years for this offence, his sentence of two years was excessive. The trial judge quite clearly when sentencing DI and D3 took into account the totality of the sentences being imposed upon them. They were being sentenced for two offences. the totality in the case of D1 was three and a half years and the totality in the case of D3 was two and a half years. When sentencing the applicant the trial judge said:
19. This case, while not the worst of its kind, was undoubtedly a bad offence. Its seriousness was aggravated by the unlawful detention of the girls and the suggestions made to them that they become prostitutes. The sentence of two years was in our view a perfectly proper one and the application to appeal against it is therefore also refused. Representation: Mr. I.G. Cross and Miss Christina Ma (Crown Prosecutor) for the Respondent. Applicant in person. |