HKSAR v. WONG SING FAI

[English Translation:英譯本]
CACC 405/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 405 OF 1999

 (ON APPEAL FROM DCCC NO. 523 OF 1999)

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JUDGMENT

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Hon Leong JA (giving the judgment of the Court):

1. The applicant for leave to appeal admitted that at about 11:15 on 27 May 1999 he steered a sampan into Hong Kong waters.  Apart from the applicant, there were 11 people, both male and female, on board the sampan.  These people were unauthorized entrants.  The applicant admitted that he conveyed these people to Hong Kong from Shanwei area.  Subsequently, he pleaded guilty in the District Court to a charge of being a member of the crew of a ship which carried unauthorized entrants into Hong Kong, and was sentenced by Deputy Judge Li to imprisonment for 4 years and 8 months.

2. According to the facts admitted by the applicant and the report of the ship surveyor, at the material time there was no fire prevention, life saving or navigation equipment on the sampan.  The hull was not in good condition and the boat was not suitable for carrying passengers on a long voyage.  The Judge took the view that the applicant was in flagrant disregard of human safety.  The relevant authorities show that the usual starting point for this type of offence is 5 years.  In the present case, the Judge adopted 7 years as the starting point and, giving one-third discount for the applicant’s guilty plea, imposed a sentence of 4 years and 8 months.

3. The applicant has set out in detail the grounds of appeal in the Notice of Appeal and has today provided us with his final written submission.  In his submission he puts forward 6 grounds, but these are merely mitigating factors.  In essence, the applicant complains that the sentence is excessive.

4. On the authority of The Queen v Wong Yin-lung [1995] 1 HKCLR 151, in cases of this nature, where the defendant was a captain or a person in charge of a vessel, 5 years is the correct starting point.  If he was not a person in charge or was simply a crew member who carried out orders, 4 years is the appropriate starting point.  Having said that, the judge is entitled to increase the sentence.

5. The sentence can be increased in the following two situations:

1.     where the passengers conveyed were made to hide in a concealed compartment, thereby making it difficult for them to escape in cases of danger; and

2.     where, due to age or for want of maintenance, the vessel was not seaworthy, but the offender took the risk to set sail, thereby gravely endangering the safety and lives of the illegal entrants.

6. These can be regarded as extremely serious offences.  Where both of the above circumstances existed, the court in Wong Yin-lung considered a starting point of 9 years appropriate.

7. In the present case, the Judge had already carefully considered the mitigating factors put forward by the applicant and the grounds set out in his written submission and had, correctly in our view, refused to accept those factors as valid mitigating factors.  Having regard to the seriousness of the circumstances of the case, the fact that the applicant had to raise money to repay his debt and the one who operated illegal immigration activity dunned him for compensation can neither constitute a mitigating factor nor reduce the seriousness of the offence. We can therefore see nothing improper in the sentence imposed by the Judge, and the application for leave to appeal against sentence is dismissed accordingly.