HKSAR v. WONG CHI KIN

CACC 357/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 357 OF 2004

(ON APPEAL FROM DCCC NO. 435 OF 2004)

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AND

CACC 410/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 410 OF 2004

(ON APPEAL FROM DCCC NO. 509 OF 2004)

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BETWEEN

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J U D G M E N T

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Hon Woo VP (giving the judgment of the Court):

Introduction

1. There are two matters before us.  One is an appeal against sentence in CACC 357/2004, leave to appeal having been granted by Stock JA on 30 September 2004.  The other is CACC 410/2004 which is an application for leave to appeal against sentence.  As the two cases have similar factual backgrounds and involve similar issues, on 12 November 2004, Stuart-Moore VP gave directions that they should be heard together.

2. Both the appellant and applicant are represented before us by Mr John Haynes, who has raised the same grounds of appeal on their behalf.

CACC 357/2004

3. The appellant was convicted after trial before Judge Line in the District Court on two charges.  The first charge was for assisting the passage within Hong Kong of an unauthorised entrant, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115 in that on 27 February 2004, the appellant assisted the passage within Hong Kong of an unauthorised entrant, a 15-year old young man surnamed Lau.  The second charge was for handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210, in that on the same day the appellant (and Lau) dishonestly received certain stolen goods, namely a total of 4 pieces of Buddhist pines, knowing or believing the same to be stolen goods. 

4. The facts as admitted by the appellant were that on 27 February 2004 at about 8:35pm, an unlit motorised sampan was intercepted by two police vessels.  The appellant was steering the sampan and Lau was on board the sampan at the time of the interception.  On board the sampan were, among other things, 4 uprooted Buddhist pines (about 4 to 5 metres in length).  The sampan, 6.85 metres in length and 1.95 metres in breadth, was equipped with an outboard propulsion engine.  There was not any fire fighting appliance or navigation light for night operation on board.  There were cracks on the transverse bulkhead connecting to the main hull of the sampan.  The watertight integrity of the sampan was not completely sound. 

5. The judge imposed a sentence of 4 years’ imprisonment on the first charge, 2 years and 8 months’ imprisonment on the second charge and ordered 12 months on the second charge to run consecutively to, and 20 months on the second charge to run concurrently with, the sentence on the first charge, making a total of 5 years’ imprisonment. 

Grounds of appeal

6. Two grounds of appeal are raised.  

7. The first ground asserts that a starting point of four years’ imprisonment is not appropriate for this type of immigration offence.  The sentencing guidelines laid down in various authorities should, it was argued, be confined to snakehead type illicit operations where human cargo is exploited and at risk.  In this case, it is submitted that the illicit operation was to handle 4 stolen trees valued at several thousand dollars.  There was no further potential criminality and no exploitation of snakehead victims.  Even where snakehead operations are involved, there is no sentencing straitjacket.

8. The second ground of appeal argues that the incongruous aspect of the sentences on the first and second charges leads to a totality which is too long for the overall illicit venture.  Where the unlawful entry consists of transportation simpliciter of the culprits to and from the scene of the crime, the gravity or lack of gravity of the substantive crime (ie handling 4 stolen trees) should dominate the overall sentence passed.  

The law

9. It is convenient at this juncture to set out the provisions of two quite similar offences under the Immigration Ordinance.  Section 37C(1) provides:

“(1)	Subject to subsection (2), if a ship enters Hong Kong with an unauthorized entrant on board-
	(a)	each member of the crew;
	(b)	the owner of the ship and his agent; and
	(c)	any person who participated in making arrangements to enable the voyage on which the unauthorized entrant boarded the ship or was brought to Hong Kong to take place,
	commits an offence and is liable-
	(i)	on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; and
	(ii)	on summary conviction to a fine of $350,000 and to imprisonment for 3 years.”

Section 37D(1) of the Immigration Ordinance provides as follows:

“(1)	Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong-
	(a)	arranges or assists the passage to, or within, Hong Kong;
	(b)	offers to arrange or assist the passage to, or within, Hong Kong; or
	(c)	does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,
	of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable-
	(i)	on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years;
	(ii)	on summary conviction to a fine of $350,000 and to imprisonment for 3 years.”

10. It can therefore be seen that whenever there is an unauthorised entrant on broad a vessel in Hong Kong waters, the person in charge of the vessel or a crew member who assisted in the passage will be liable to prosecution under either of the two sections.  There is no difference in the penalty.  The cases laying down the sentencing guidelines do not make any difference either.  The emphasis in the earlier section seems to be on the position of the accused in the vessel whereas the later section lays emphasis on his conduct. 

11. A number of authorities on sentence has been referred to by both Mr Haynes and Mr David Leung, for the respondent.  We will summarise the effect of these authorities, irrespective of whether an accused was convicted of the offence under one or the other of the statutory provisions.  All the authorities are decisions of this Court and the sentences are those applicable where an accused is found guilty after trial. 

12. The generally applicable tariff is 4 years’ imprisonment: R v Ho Siu-lun and Ors [1987] HKLR 1086, R v Chan Kwok-keung and Anor [1988] 1 HKLR 279 and R v Lam Kon-man, Crim App No. 329/1990.  Where the accused was the captain of the vessel or the person in charge or assisting in the operation of the organisation of the venture, the appropriate starting point is 5 years’ imprisonment: R v Wong Yin-lung [1995] 1 HKCLR 151 at 153 and R v Pang Wing [1996] 1 HKC 624 at 626H and 627A.  The following situations will be considered as aggravating factors increasing the sentence from the 5 years starting point in respect of the person in charge of the vessel or of one who was in some way actively involved in the circumstances of the aggravation:

(a)	The unauthorised entrants or illegal immigrants were concealed in a place in the vessel from which escape would have been difficult: R v Ng Kit-yuen [1992] 1 HKCLR 170, at pp 173-174.
(b)	The vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering the passengers: also see Ng kit-yuen, at p 174, and HKSAR v Tsui Kwong Ming, CACC 247/2004, 14 December 2004.
(c)	The vessel was carrying a large number of illegal entrants: Wong Yin-lung, at p 153, line 34.
(d)	Where the vessel was grossly overloaded, creating a gravely hazardous operation: R v Chan Shing Chun, Crim App No 390 of 1995, 9 November 1995.
(e)	The degree of danger that might be involved caused by the age and physical condition of the unauthorised entrants, as greater risk in the event of a mishap might more easily risk the life of the very young, very old and the infirm: R v Lo Shui Lun, Crim App No 109 of 1995, 17 August 1995 and Tsui Kwong Ming.

13. In Wong Yin-lung, this Court also expressed some doubts as to whether any substantial discount should be given in these offences as it may regrettably be seen as an invitation by the organisers to employ young men as crew in these illicit ventures.

The arguments

14. Now we turn to the grounds of appeal.  The starting point of 4 years’ imprisonment adopted by the judge is consistent with the authorities cited, and it can even be considered as too lenient, because the appellant was the person in charge of the sampan. 

15. Mr Haynes argues that all the above authorities were in relation to the import of illegal immigrants by the use of the vessel.  In the present case, if we understand Mr Haynes correctly, he is saying that the sampan was used by the appellant with Lau, albeit an unauthorised entrant, as his assistant to come to Hong Kong for receiving the 4 stolen Buddhist pines.  There was no evidence to show that Lau would be staying in Hong Kong.  This distinguishes the present case, so the argument runs, from those authorities where a starting point of 4 to 5 years was considered appropriate by the Court of Appeal.  Mr Haynes further argues that the main crime in the present case is the handling, and the assistance of the unauthorised entrant Lau was just incidental because the appellant had Lau as his assistant in the handling charge.  While the point is interesting, we must say that it is very difficult to distinguish between the criminality of the two different situations.  In passing sentence, the judge said:

“The obvious mischief in those cases [involving illegal immigrants] is that the people being brought here come and work and live here unlawfully in breach of our Immigration laws.  That mischief was absent here.  The mischief here was that you were bringing someone to assist in a crime, even if the 15-year-old may not have appreciated it.  In my judgment, that mischief is just as great as the mischief I have described of bringing people here to work.”

16. Mr Haynes also relies heavily on the judgment of Stock JA when he gave leave to the appellant to appeal.  Stock JA said:

“… I have no qualms at this stage about the sentence imposed on Charge 2.  However the question arises whether the sentence of four years on Charge 1 and the totality of five years were excessive, given particularly that two years and eight months was the sentence imposed for the offence which the two defendants came to Hong Kong to commit.  The circumstances of bringing in an entrant merely to assist in this offence and then leave Hong Kong again may be different from those connected with the rationale for the five-year tariff to which the judge was referring.  It seems to me that to add a factor of two years and four months for bringing in an assistant to commit the offence for which the two year and eight months sentence is imposed is a matter that deserves consideration by a full court.”

17. At least in one sense, the mischief in the present case could be considered to be more serious than that of bringing in illegal immigrants to live and work in Hong Kong.  While both are in contravention of our immigrations laws, bringing in people who have no right to enter Hong Kong to commit a crime, where the person in charge of the vessel was also involved in the enterprise, must be viewed more seriously than those who just brought in illegal immigrants who may live or work here, albeit illegally against the immigration laws, because these illegal immigrants in this latter case are not known to the accused to be committing crimes in breach of other spheres of our criminal law.  For example, if an accused brings in illegal immigrants to commit serious offences like murder or armed robbery in this territory, and taking them back afterwards, is he to be considered less culpable than those who just bring in illegal immigrants who may, apart from being in breach of the immigration laws, live and work peacefully in Hong Kong? 

18. Where unauthorised entrants are illegally brought by an accused into Hong Kong to commit a crime to which the accused is a party, we do not think it fruitful to discern for sentencing purposes whether the immigration offence or the other crime is more serious or dominant.  In the present case, we do not accept that the offence of assisting the passage within Hong Kong of an unauthorised entrant should be treated as subsumed in or less serious than the handling charge, or that the handling charge in the circumstances of this case should be considered as the major crime. 

19. After all, as submitted by Mr Leung, the mischief that section 37D of the Immigration Ordinance aims at is the bringing in of unauthorised entrants.  It does not focus on the purpose of bringing in such entrants.  Thus, the bringing in of unauthorised entrants so that they can enter Hong Kong and stay as illegal immigrants or for the purposes of committing a crime makes little difference in terms of sentencing.

20. We are not persuaded that the appellant in the present case should be dealt with by a lighter sentence than that considered in the authorities cited as appropriate for the person in charge of vessels bringing in illegal immigrants.

21. Mr Haynes also urges us to consider that the appellant in the present case should be dealt with more leniently in that although he was guilty of the first charge, he had no criminal ambition for Lau the unauthorised entrant, to become an illegal immigrant or stay in Hong Kong.  He was just assisting in Lau’s passage as charged.  We think the answer is obvious in the example we have given above of the importation of a transient murderer or armed robber.  This point does not assist the appellant.

22. Moreover, there are two offences on which the appellant was convicted.  Had he only committed one of the offences, he would only face the sentence in regard to it.  But he had committed two, and the only possible argument is that the total sentence for both offences is too high.  In our law, it is always recognised that two or more persons committing a crime would normally be considered as an aggravating factor as compared with the sentencing in respect of a lone culprit.  If the appellant had assistance in the crime from a person who was not an unauthorised entrant, he would not be guilty of the first charge.  Had he committed the second charge all by himself, neither would he be guilty of the first charge.  We do not see anything illogical where he committed both the first charge and the second charge and would have to be dealt with accordingly.

23. There is a more thought provoking aspect in Mr Haynes’ submissions.  The sentencing authorities were all directed at snakehead type of the immigration offence, and they should not be applied to the innocent type, such as bringing in an illegal entrant merely for looking at the scenery.  However, this is not a proper case to enter into such a discussion.

24. Mr Haynes’ last argument is that the totality of the sentences on the two offences is too long because the handling offence should not be viewed as too serious.  He submits that there is an appearance of undue severity where the gravamen of the handling offence is handling stolen trees worth approximately several hundred to several thousand dollars each.  The handler only handled the goods after the damage to the environment and theft had already been done.  There was no evidence that the appellant was anything but a deliveryman, and the enhancement of sentence adopted by the judge, at 35% from the starting point of 2 years, may only be appropriate for the thief who did the actual damage or the ultimate receivers, and not an intermediate handler as the appellant.  

25. We would not rule out that under some other circumstances, there may be a distinction as to the culpability of the eventual receiver of the stolen goods as opposed to the intermediate handler, because it would normally be the case that the eventual receiver would probably make more profit from the crime than his deliveryman.  Yet the importance of the deliveryman in the chain cannot be overlooked, for without him, the receiver would not be able to receive the stolen goods, and it would be quite futile for the thief and the ultimate receiver to attempt to perpetuate their respective crimes. 

26. When the judge considered an enhanced sentence for the handling offence, he had before him the material put forward by the prosecution “about the recent surge in cases of Buddhist pines being taken from our coast, especially our country parks.”  The judge also referred to Judge Yuen’s enhancement of sentence in HKSAR v Wong Wai-hung and Ors, DCCC 315/2004 and considered that enhancement was necessary for deterrence.  

27. The judge also gave an account of and commented on the material provided by the prosecution.  He said:

“What the summary reveals is that these offences attacking Buddhist pines are on the increase; that damage is being done, serious damage, to the stock of trees; and damage is being done to the Country Parks because of the crude removal, the forging of trails through the undergrowth and the like, and the erosion that follows that.  Nearly all of us in Hong Kong live in the urban areas and our wild and beautiful parks and the landscape are something that is very dear to us, and the public and the courts simply will not have people like you coming over here and spoiling it.”

28. The judge recognised that the total of 5 years’ sentence was a long one.  He said:

“The total sentence is 5 years.  I appreciate that is a long sentence but nothing else is likely to deter like-minded people.”

29. We agree with the judge as to his sentiments.  We consider that the sentence imposed for deterrence is nothing other than proper in the circumstances.  The effect in totality is that on top of the immigration offence for which a sentence of 4 years was passed, an additional year is added for the handling.  We do not consider the total sentence of 5 years’ imprisonment at all excessive.  Indeed, the judge was already lenient to the appellant in not adopting a five-year starting point for the first charge, as the appellant was the person in charge of the sampan, which according to the authorities cited above, would have attracted a starting point of 5 years.

CACC 410/2004

30. Mr Haynes also appears for the applicant in this case who had pleaded guilty to two similar charges as the appellant in the previous case, before Deputy Judge Tallentire in the District Court.  The judge passed a sentence of 21½ months on the handling charge and 40 months’ imprisonment for the charge of assisting the passage within Hong Kong of an unauthorised entrant.  He ordered 24½ months of the 40 months’ sentence to run consecutively to the sentence of 21½ months, making a total of 3 years and 10 months’ imprisonment. 

31. The facts as admitted by the applicant were that at about 10:20am on 13 March 2004, police officers on board two police vessels saw a sampan fitted with an outboard engine at sea off Tai Long Wan sailing slowly heading easterly direction.  The police intercepted the sampan about ten minutes later.  On board the sampan were the applicant and an 18 year-old man Lo together with 14 uprooted Buddhist pines.  The applicant was the coxswain in control of the steering wheel in the middle of the sampan while Lo was the passenger sitting in the front position.  The age of the 14 Buddhist pines was several tens of years and the unit price ranged from several hundred to several thousand dollars.  The sampan had two holes of about 200mm in length at the forward inner bottom of the main hull structure.  There were no navigation lights fitted on board for night operation.  No fire extinguisher nor life jacket was found on board.  The sampan was not appropriately equipped and was not suitable for carrying any person.  Lo was an unauthorised entrant from the Mainland. 

32. The judge referred to Judge Yuen’s judgment and Judge Line’s judgment and gave an enhanced sentence on the handling charge, with a starting point of 2 years’ imprisonment, enhanced by 35%.  The judge then referred to Pang Wing and adopted a starting point of 5 years’ imprisonment for the immigration offence.  After reducing each by one-third to take into account the guilty plea, and making part of the immigration offence sentence consecutive to the sentence for the handling charge, he reached a sentence of 3 years and 10 months for the applicant.  

33. It will be noted that the starting point for the immigration offence adopted by the judge is 5 years, whereas that adopted by Judge Line in the earlier case was 4 years.  That was why we said that Judge Line dealt with the appellant in the previous case leniently.  It does not, however, mean or reflect that the judge in this case had imposed an inappropriate sentence on the applicant.  What the judge did was consistent with the sentencing authorities.  Another aggravating factor in this case was that the sampan seemed to be much more unseaworthy than that in CACC 357/2004.  We are not disposed to interfere. 

34. Moreover, the number of Buddhist pines handled in this case is 14 and they are older and bigger than those 4 trees handled in the previous case.  In such circumstances, we do not see any justification to interfere with a total higher starting point adopted by the judge here. 

Conclusion

35. For the above reasons, we dismiss the appeal in CACC 357/2004 and we also dismiss the application in CACC 410/2004.