TSANG CHIU KEUNG and Another v. R.

IN THE COURT OF APPEAL

1993, No. 459
(Criminal)

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J U D G M E N T

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Headnote: Yet another plea by the court for the amendment of s.67A

Criminal Procedure Ordinance, Cap.221.

Silke, V.-P.:

1. This is the judgment of the court.

2. The applicants, Tsang Chiu Keung and Tsang Fai, were convicted before Mr. Andree Wiltens, sitting as a Deputy Judge of the District Court: Tsang Chiu Keung - "D1" - upon his plea of guilty and Tsang Fai - "D2" - after trial. Each was sentenced to a period of 3 years and 3 months' imprisonment.

3. D1 sought leave to appeal against his conviction out of time on the basis of no Governor's consent to the proceedings against him. In fact, there was such a consent, a delegated one and the validity of such consent has been upheld in Criminal Appeal No.476 of 1993 The Queen v. Wong Sau Chun & Another. There is therefore no valid ground before this court and Tsang Chiu Keung's application for leave to appeal against conviction out of time is refused.

4. Tsang Fai, who seeks leave to appeal against his conviction and, if necessary, his sentence, has maintained that he was not a crew member but was an unlawful entrant who had paid a fare for the journey.

5. The evidence against him at trial was that one of the unauthorized entrants Chau Lai Fai said that he had seen both D1 and the applicant on board this boat at Shan Mei. The applicant did not spend the journey with the other unlawful entrants.

6. A police witness on the vessel, which apprehended the boat with the unlawful entrants, gave evidence that he had seen D2 steering the vessel and that he was the person in the wheel house at the time the two vessels were tied up together. He was arrested there.

7. In his own evidence, the applicant stated that a fisherman's card which he had produced was a forgery given to him to enable him to enter Hong Kong unlawfully. To support the fact that the fisherman's card was a forgery, he produced a marriage certificate and a photocopy of his Chinese identity card showing that his real name was Cheung Muk Lam. He denied being a crew member, steering the boat or coming on board the boat before the unlawful entrants came on board. He called the 1st defendant, Tsang Chiu Keung, who gave evidence in support of the applicant. The trial judge found his evidence sufficiently unreliable to have any weight placed upon it. Nor did he place weight on the evidence of the applicant himself.

8. From the evidence before him, the trial judge was entitled to come to the conclusion he did. Having given consideration to the various matters raised, he was entitled to find the applicant guilty of the offence charged. Nothing the applicant had said to us today suggests that the trial judge was wrong in so doing. The application in respect of conviction is refused.

Sentence

9. As to sentence, he tells us that he has a family in China who need his support. He further says that he has been detained for a period of 35 days in Immigration custody prior to being rendered into the custody of the court. This would not appear to be something which was drawn to the attention of the sentencing judge. He makes no reference to it.

10. This court has said on many occasions, and no one seems to take any notice, that the sooner section 67A of the Criminal Procedure Ordinance is amended the better for the Commissioner of Correctional Services is bound by the terms of that section and it is only when a person is rendered into court custody that he can count the period in custody until conviction and sentence as part of the sentence itself.

11. That having been said, the sentence of 3 years and 3 months here was a lenient one and, even allowing the for extra 35 days, it is not a sentence which we feel it right to alter. The application for leave to appeal against sentence is therefore refused.