R. v. CHEUNG CHI MAU

1995, No.250

(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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P. Chan, J. (delivering the judgment of the Court):

1. The Applicant pleaded guilty to one count of assisting the passage within Hong Kong waters of unauthorized entrants, contrary to s.37D(1)(a) of the Immigration Ordinance, Cap.115. He was sentenced to 3½ years imprisonment. He applies for leave to appeal against his conviction and sentence. Before this court, he said that he now only wished to ask for a reduction of sentence.

2. The Applicant is 20 year of age. He was the person steering a wooden motorized vessel which was spotted by the police patrolling on board a police launch near mid-night on the 20th January 1995. It was travelling in Hong Kong waters towards Sha Kiu apparently coming from the direction of Mainland China. The police intercepted it. It was a vessel of a standard type with one 15 HP engine, and although it was not the best of its kind, it was not one of those very unsafe vessels. However, quite a lot of items were missing, particularly life jackets and navigational equipment. There were three women on board all in their late stage of pregnancy. They were unauthorized entrants and none of them had any valid travel document. The Applicant upon arrest and caution admitted that he agreed with the owner of the vessel to bring these three ladies from China to Hong Kong and in return he would get RMB 500.

3. The learned judge adopted a starting point of four years although he said it should be nearer 4½. He said that he could have given a discount of about 9 months but that because of the aggravating factor that the three passengers concerned were all heavily pregnant, the Applicant did not get as big a discount as he might have in other circumstances. At the end, the learned judge sentenced him to 3½ years.

4. As his grounds of appeal, the Applicant submitted that he did not know that it would be an offence to transport illegal immigrants to Hong Kong. He also relied on his miserable family circumstances in China. He further said that another snake-head only got 29 months.

5. We do not think there is any substance in these grounds. We do not believe for one moment that he did not know it was an offence to transport illegal immigrants to Hong Kong. From the circumstances of this offence, it is quite clear that the Applicant was secretly sneaking unauthorised entrants to Hong Kong and he must be well aware that this was an offence.

6. This Court had previously adopted a starting point of 5 years. One of the important considerations in passing sentence in this type of offence is the risk to the safety of passengers on board poor and unsafe or even dangerous vessels. The lack of life-saving equipment poses an even greater risk. Here we have three women in their advanced stage of pregnancy on board and the risk is almost intolerable. This is a factor which, in our view, the learned judge was entitled to take into consideration.

7. It is unfortunate that the learned judge seemed to be a little uncertain as to the starting point and the final sentence he should impose. However, we do not think either the starting point or the ultimate sentence can be described as too high. Nor are they wrong in principle or manifestly excessive. If anything can be said on this sentence, it is that this is on the light side. In the circumstances, the application is refused.