R. v. HUANG WEI JIAN and Another

No. 621 of 1995
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Ryan, J.: (giving the judgment of the Court)

1. The 1st Applicant Huang Wei-jian pleaded guilty to a charge of arranging the passage within Hong Kong of an unauthorized entrant, namely, Li Wing Kwong. He was sentenced to three years' imprisonment and now seeks leave to appeal against that sentence.

2. The 2nd Applicant Chan Kam Chow pleaded not guilty to a charge of assisting the 1st Applicant in the passage of that unauthorized entrant. He was found guilty after trial and sentenced to four years' imprisonment. He now seeks leave to appeal against both conviction and sentence.

3. On 8th November 1994, a police party, travelling in a Marine Police launch, saw a motorised sampan travelling at high speed and tried to intercept it. The sampan did not initially respond to the request to stop, but eventually after further calls from the police officers it did so.

4. The prosecution evidence was that at the time the sampan was first sighted until the time it was stopped, the 2nd Applicant was seen at the rear of the sampan controlling its movements and the 1st Applicant and Mr Li were seen sitting at the front of the boat. It was admitted at the hearing that Li was an unauthorized entrant and the 2nd Applicant is a permanent resident of Hong Kong. When questioned in the presence of the 2nd Applicant on the boat Li claimed to have been fishing in rough seas when his boat had sunk and that after half an hour in the water he had hailed the 2nd Applicant's boat and had been rescued.

5. The police officer's evidence was that Li's clothings were dry, had no traces of salt and his appearance was not of one having been recently in the water.

6. At the trial the 2nd Applicant insisted on the admission into evidence of a witness statement which he had made to the police officers. In that document he claimed to have been, that day, taking the 1st Applicant on a pleasure cruise, that he had seen a man standing on a rock waving his arms and that when their boat approached that man he had jumped into the sampan. They then headed for the Chaiwan Typhoon Shelter. His explanation when asked at the time of giving the statement as to why he had transported Li was that the man had asked him to pick him up.

7. The District Judge found that s.37D(1)(a) of the Ordinance created as an absolute offence subject to the defence of due diligence contained in sub-section (2) whereby an accused person has a defence, if he can prove that he did not know, had no reason to suspect and could not have, with reasonable diligence, have discovered that the person he was carrying was an unauthorized entrant.

8. The 2nd Applicant did not give evidence but based his defence on the contents of the witness statement which was exculpatory and as it had not been subjected to cross-examination, was of little use really to the District Judge in deciding where the truth lay. The District Judge stated in his reasons for verdict that he found the account contained in that statement to be highly improbable, but that even if he were to accept the contents as true, they came nowhere near to establishing a defence under sub-section (2). He addressed himself to the prosecution evidence and was satisfied that on that evidence, the charge had been proved beyond reasonable doubt. In his grounds for appeal, the 2nd Applicant repeats the facts which had been set out in that witness statement, and that as he was only aware that he had picked up a mainlander after they had been intercepted by the police party.

9. There was nothing in the grounds of appeal or in anything that has been said to us today that convinces us that the verdict is in any way wrong, and the application by the 2nd Applicant for leave to appeal against conviction is dismissed.

10. The 1st Applicant in his grounds for leave to appeal against sentence claims that the discount given to him by the District Judge was insufficient and that in any event, on humanitarian grounds, his sentence ought to be reduced. The District Judge took four years as a starting point and gave credit for the plea of guilty, reducing the sentence to three years' imprisonment. We do not consider that that the discount was in any way wrong. In respect of the 2nd Applicant's application for leave to appeal against sentence, the term of four years was not in any way manifestly excessive or wrong in principle. The applicants' applications for leave to appeal against sentence are dismissed.