Attorney General v. Leung Cheung and Others
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CAAR000014/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Application for Review No. 13 of 1980 -----------------
----------------- IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Application for Review No. 14 of 1980 -----------------
----------------- Coram: Court of Appeal (Li J.A. & Rhind J.J.) in Court Date of Judgment: 22nd December 1980 ----------------- JUDGMENT ----------------- Silke, J.: 1. I am authorised to say that Mr. Justice Rhind who is unable to be present today has seen the contents of the judgment I am about to read and is in agreement with it. It is the judgment of the Court. 2. Leave was granted to the Attorney General to apply to this court for a review of the sentence passed on the 1st September 1980 by a Judge of the District Court - application for Review number 13/80 - and leave was also granted in respect of sentences passed on the 3rd September 1980 by a Judge of the High Court - application for Review 14/80. 3. At the invitation of Mr. Lucas, with him Mr. Tisdall, who appeared for the Crown and without objection from Mr. Cheng Huan who appeared for the Respondent in application 13/80 and Mr. Bunting who appeared for two of the Respondents in application 14/80, and the other the unrepresented Respondent, Chan Shu Shing, we dealt with both the applications at the same time for reasons which will become apparent. The facts: Application 13/80 4. The Respondent was charged in the District Court with an offence under section 37D(1)(a) of the Immigration Ordinance and was convicted on plea. The offence related to the assisting of the passage within Hong Kong of unauthorised entrants. 5. On the 7th August 1980 a group of illegal immigrants from Macau were shipped to Hong Kong. On landing at Hok Tsui, Shek O, eleven illegal immigrants were transferred to a van owned and driven by the Respondent. 6. It was seen by a police patrol which attempted to stop them in the Shek O Road and, after a high speed chase in the course of which a number of objects were thrown at the police car, the van was stopped. 7. The Respondent admitted that his remuneration was $2,500 for the drive from Hok Tsui to urban Hong Kong. 8. The illegal immigrants themselves were to pay between $16,000 and $18,000 per head for a successful trip to Hong Kong. 9. The Respondent had a clear record and the learned judge, having been referred to Leung Chun Chung v. The Queen(1), imposed a sentence of twelve months imprisonment. 10. The application for review is made on the grounds that the sentence is wrong in principle and manifestly inadequate. 11. The maximun penalties provided for in section 37D(1)(i) are: on conviction on indictment a fine of $5,000,000 and imprisonment for life: on summary conviction a fine of $100,000 and to imprisonment for three years. Application 14/80 12. The three Respondents were charged in the High Court under the provisions of section 37C(1)(b) of the Immigration Ordinance, CAP 115, with being the owners of a ship which entered Hong Kong having unauthorised entrants on board and were convicted on their own plea. 13. In late January 1980 the three Respondents purchased a sixty foot motorised fishing junk at a price of $21,000 - each putting up one third of the price. The reason for the purchase was to bring unauthorised entrants to Hong Kong. 14. The junk was repaired and, on the 27th February 1980, the three Respondents, having made prior arrangements, left Hong Kong on the junk for Macau to pick up unauthorised entrants. Each unauthorised entrant was to pay $8,000 passage money which would be shared between the three Respondents. 15. They picked up thirty one persons at Hak Sha Wan in Macau and returned to Hong Kong entering our waters in the early morning of the 28th February. 16. A patrolling police launch saw them in the West Lamma Channel and directed the junk to stop. The junk increased speed, changed direction, then flares were fired, orders were given over a loud speaker and, after a short chase, the junk was stopped. It held thirty four persons, the three Respondents and the thirty one unauthorised entrants. 17. Had the trip been successful the Respondents would have received some $82,000 each. 18. The first Respondent and the third - Leung Cheung and Chan Shu Shing - had clear records. The second Respondent Leung Yau Chuen had one previous conviction in 1979 for assault occasioning actual bodily harm upon which a bond for twelve months was imposed, this had expired on the date of conviction. 19. Each was sentenced to imprisonment for a period of three years. 20. The Application for Review is made on the ground that the sentences are manifestly inadequate. 21. The maximun penalties provided for in section 37C(1)(i) and (ii) are: on conviction on indictment a fine of $5,000,000 and to imprisonment for life: on summary conviction a fine of $100,000 and to imprisonment for three years. 22. We heard Mr. Lucas generally on the "wrong in principle" application which in turn impinged of necessity upon the "manifestly inadequate" application but we do not seek in any way to derogate from the principles as laid down by the Full Court in Re applications for Review of Sentences [1972] H.K.L.R. 370(2) at page 412 as to the Attorney General's role in an application of this nature. The Legislation 23. As the Crown has urged us to look at the legislative changes over the past couple of years in relation to immigration it would be useful here to set out what those changes are. 24. Part VIIA, containing sections 37A to 37M, was added to the Immigration Ordinance by Ordinance 61 of 1979. Those sections created the concept of "unauthorised entrants" and provided penalties of far greater severity than those contained in the then existing legislation. We note that Part VIIA - and B - expire on the 31st December 1980 unless the Legislative Council by resolution otherwise determines. 25. The definition of "unauthorised entrant" was applied by LN 194/79 to all persons resident formerly resident, or who are or have been in Macau. 26. On the 10th June 1980 LN 142/80 extended the definition of "unauthorised entrants" to persons entering the Colony from China without official documents issued in China. 27. On the 23rd October 1980 the old principle - the touch base concept - was abandoned. 28. Mr. Lucas would have us consider the increasing concern of the Legislature, in respect of the damage done to Hong Kong by the rising tide of illegal immigrants, as illustrated by these legislative changes. 29. Allied to this he has provided us with a table of arrests of illegal immigrants coming from China direct, not via Macau, from January 1978 to November 1980. 30. This shows a steady increase in 1978 from 178 in January to 1917 in November, with a slight drop in December. In 1979 the increase was much more rapid rising from 1934 in January to 11,430 in May, 11,884 in June, dropping dramatically in July, but rising again to 11,605 in October. 31. In 1980 the increase was even greater being 3,784 in January, rising to 12,489 in August, 13,365 in September and reducing slightly to 11,017 in October. In November for the first five days the number was 272. 32. He makes use of this table to show the reasons for the anxiety expressed in the Legislature and as the rational for the alterations in the legislation. 33. As the Chief Justice said in the judgment of the Court of Appeal in Application for Review 1980 No. 3(3):
34. We, with respect, adopt those sentiments. Sentences by the Courts 35. It is Mr. Lucas' contention that the Courts are lagging behind in their reaction to the seriousness of the situations by failing to impose sentences which are reflective of the changing circumstances. In effect he says that by looking back to sentences imposed in the past there is a failure to allow for the circumstances of the present. 36. In an attempt to illustrate his contention he has presented us with a table of sentences passed for various immigration offences and under various section of the Ordinance running from November 1978 to September 1980. It suffices to say generally of this that a great many of the convictions were imposed under section 38 of the Ordinance and in respect of "illegal immigrants" rather than "unauthorised entrants". 37. For offence under S. 38 the maximum sentence has been a term of three years imprisonment and a fine of $5,000. 38. But our attention has been drawn in particular to two Applications for Review heard on the 15th May 1980 - AR 3/80(3) and AR 4/80(4) of which more later - and to the following:
39. Of this last, which comes between two sentence by the same judge of five years each on similar charges it would seem that there were factors of which we are not aware which led to the apparent disparity. 40. It is important to consider AR 3/80(3) and AR 4/80(4) separately. 41. In AR 3/80(3): the Respondents, aged 58 and 61 were convicted of carrying sixteen unauthorised entrants on 17th March 1980 from Macau to Hong Kong contrary to S. 37C(1)(a) of the new part VIIA. The conviction was before a Magistrate and there was no evidence of the amount paid by the unauthorised entrants but the Magistrate inferred that, in view of the number of passengers the Respondents would have received a substantial amount for their services. The Respondents were originally sentenced to six months and nine months respectively. 42. The Chief Justice, delivering judgment of the Court of Appeal, having said that those who take part in the smuggling of illegal immigrants must expect the Courts to regard such conduct as deserving of severe punishment, went on:
43. A sentence of two years imprisonment was substituted in each case. 44. In AR 4/80(4): the respondent was convicted in the Magistrates Court under section 38 of the Ordinance of the offence of aiding and abetting an illegal immigrant to remain in the Colony. The immigrant came from Macau as one of nine immigrants. The Respondent took the nine to the Yaumati Typhoon shelter where six left him. He was taking the remaining three to a rendezvous when he was arrested. His pay was $400. The sentence imposed by the Magistrate was six months imprisonment suspended for two years. As we have said the maximun sentence under Section 38(1) of the Ordinance is a fine of $5,000 and imprisonment for three years - a sharp contract with the sentences provided for under the new Part VIIA. 45. Cons J.A. in delivering the judgment of the Court of Appeal had this to say:
46. The Court thought the proper sentence ought to have been imprisonment for one year. Sentences Generally 47. In passing a sentence it matters not by what Court the sentence is being passed if the gravity - or the minor nature - of the offence is the same. 48. In Chan Hang Chew alias Tsang Kong Chau v. The Queen(10) Blair-Kerr J. in delivering the judgment of the Court and having commented on the restrictions as to punishment placed upon the District Court by the District Court Ordinance, then five years, went on to say:
49. Leonard J. (as he then was) said in Ma Ngan Leung v. The Queen(11), adopting those principles,
50. Huggins J.A. delivering the judgment of the Court of Appeal in Application for Review No. 4 of 1979, a dangerous drugs case, reiterated these words when he said:
51. In the light of the judgment of the Court of Appeal in AR 3/80(3) we feel that the sentence of two years substituted in that case is an indicator of sentences which should be imposed in the medium serious cases of this kind where the expedition is deliberately planned. 52. This however does not exhaust the matter in that circumstances such as the amount of money involved, whether or not the boat used, or vehicle for that matter, was purchased with the illegal transportation of unauthorised immigrants in mind, and the number of entrants involved fall to be considered - nor is this list itself exhaustive or intended to be. No doubt the Attorney General in picking his forum will bear such matters in mind. The present Reviews 53. To return to the actual Reviews before us: in A.R. 13/80 where the sentence was imposed on indictment in the District Court the judge's attention, as we have said, was drawn to Leung Chun Chung v. The Queen(1). 54. That was an appeal to a single Judge from a decision by a Magistrate imposing a sentence of twelve months imprisonment. 55. In that appeal the Judge, having referred to a large number of cases cited to him running from 1977 to 1980, had this to say:
56. Besides being a conviction on an offence under S.38(1), Leung Chun Chung's(1) case was one of those exceptional familial obligation cases and a fine was substituted for the sentence of imprisonment. 57. The District Judges attention was not drawn to A.R. 3 of 1980(3). 58. We note the submission of Mr. Cheng Huen and Mr. Bunting that, by virtue of the change in the "touch base policy" and by the necessity to carry identity cards at all times the situation, has, in effect, been solved by the action of the legislature. We think first that this is speculative as being for too early to be known as yet; further it is our view that we must look to the date of the offence and to the time when the sentence was imposed in considering Applications for Review. This is not, of course, to exclude consideration of drastic changes in circumstances present at the time the Review is heard. We do not think there to be such here. 59. We think that, as the Judge of the District Court was passing a sentence on indictment on an offence in connection with unauthorised entrants, the sentence of one year was both wrong in principle and manifestly inadequate in the light of a planned excursion for gain. It is not however the most serious case of its kind and we think the proper sentence to be one of 2?years imprisonment discounted to two. 60. We echo the words of Cons J.A. in A.R. 4/80(4), wherein he said:
61. Therefore, in accordance with the normal practice, we will set aside the sentence of one year imprisonment and substitute therefor one of two years imprisonment. 62. In A.R. 14/80 the attention of the Judge was drawn to the sentence of 2?years imprisonment imposed in H.C. Crim 44/80(9) which was not only out of line with sentences imposed by the same Judge in similar cases but also out of line with sentences generally imposed in the High Court. And his attention was not drawn to those other sentences. 63. This was a serious case, a planned excursion purely for gain where the profits were enormous and the purchase of the junk intended for the sole purpose of operating as a snake boat. We think the sentence was manifestly inadequate and that the proper sentence was one of six years imprisonment. 64. In accordance with normal practice we set aside the sentence of three years and substitute therefor a sentence of five years imprisonment upon each of the Respondents. 65. The rationale being the damage to our society caused by illegal immigrants. Once the effect of the abolition of the touch base policy is known this may, but not necessarily will, have an effect on all sentences. Representation: Mr. Lucas and Mr. Tisdall for Crown/Applicant Mr. Cheng Huen (Robin J. Oliver) for Respondent in AR 13/80 Mr. Bunting (D.L.A.) for the 1st and 2nd Respondents in AR 14/80 Chan Shu Shing in person: 3rd Respondent in AR 14/80 (1) C.A. 509 Leung Chun Chung v. The Queen 1980 (unreported) (2) Re applications for Review of sentences [1972] H.K.L.R. 370 (3) Attorney General v. Leung Ming and Leung Tai. Application for Review 1980 No. 3 (4) Attorney General v. Ng Kam Fuk Application for Review 1980 No. 4 (5) Crim. 102 of 1979 (H.C.) (6) Crim. 94 of 1979 (H.C.) (7) Crim. 12 of 1980 (H.C.) (8) Crim. 17 of 1980 (H.C.) (9) Crim. 44 of 1980 (H.C.) (10) [1963] HKLR 300 (F.C.) (11) (1) Ma Ngan-Leung (2) Cheng Tak Yam v. The Queen Crim. Appeal No. 188 of 1973 |