THE QUEEN v. WONG KWAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 980 OF 1988

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REASONS FOR JUDGMENT

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1. The Appellant, Wong Kwai, a man of some 66 years at the time of the offence, was. convicted in the Magistrates Court at Fanling of aiding and abetting the remaining in Hong Kong of an illegal immigrant contrary to Section 38(1)(b) of the immigration Ordinance, Cap. 115 and Section 89 of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong. He, as the 1st Defendant in the Court below, had pleaded guilty and admitted the brief facts of the case in the following terms :-

"1. At 1145 hours on 7.9.1988; Inspector HO Shi-chung and party (including PW6 and PW7), acting on information, conducted a raid at Hsin Hing Lung Metal Factory, No. 212 Kwai Shing Circuit, Kwai Chung. On arrival at scene, they conducted an identity card check on the persons inside.

2. After checking, police found 3 illegal immigrants (PW1 - PW3) who admitted working in the factory, The two proprietors of the factory (D1 & D2) who were father and son were arrested for aiding and abetting the remaining in Hong Kong of Illegal Immigrant. Three letters with envelope and one photo belonging to one of the illegal immigrants (PW3) were found on one of the beds in the factory and seized as exhibit.

3. A check on the employment record revealed that no record was kept in respect of two of the workers (PW4 & PW5) employed there.

4. Case revealed that one of the illegal immigrant (PW3) was the nephew, of D1. He sneaked into Hong Kong in late 1987 and located D1. After some persuasion by PW3, D1 employed him to work there.

5. PW2 knew PW3 when in China. In November 1987 PW2 sneaked into Hong Kong and located PW3. PW3 introducted him to Dl. PW2 told D1 that he just worked there for 10 days. D1 agreed and employed him to work there.

6. PW1 sneaked in Hong Kong in July 1987. He met D1 in Yaumatei area and was employed by the latter to work in his factory.

7. Under caution, for aiding and abetting the 3 illegal immigrants to remain in Hong Kong, D1 stated that PW3 was his nephewnd that PW3 had begged him (D1) to allow him to stay. For the other two illegal immigrants. After he had known their illegal immigrant status, he told them to go but the latters refused. Since he was in need of manpower, he allowed them to stay for the time being.

8. Under caution f or failing to keep record of^-employee in respect of PW4. &. 5, D1 admitted the offence.

9. Under caution for AA of II, D2 stated that he had no knowledge of their status.

10. After enquires, both defendants were charged with the offence to appear Court."

2. Mr Tang who appeared for the Appellant in the Court below stressed in mitigation the following factors:

1. His plea of guilty tendered, at the very first opportunity showing remorse;

2. He was very cooperative with the police;

3. His previous good character;

4. His old age and that he has been detained in police custody for 2 days and it is highly unlikely that. he would commit a similar offence or other offences in the future; and

5. The illegal immigrants are his close and distant relatives.

3. Mr Tang submitted that the tariff sentence was one of immediate imprisonment. However, in two previous Magistracy appeals, the normal tariff sentence was not followed on the ground that the defendants in those cases stood in the position of a relative to one of the illegal immigrants. He relied on the case of LEUNG Chun-chung v. R., Criminal Appeal No. 509/80, R. v. CHEUNG Wing- kwan, magistracy Appeal No. 638/84. He asked that following these decisions the sentence should be either suspended or a substantial fine imposed, pointing out that the defendant was was an old man of 66 years of age.

4. The Magistrate in passing a sentence of 9 months imprisonment  stated that he was bound by the recent decision of the Court of Appeal. I am told he was referring to the case of R. v. So Man-king Magistracy Appeal No. 408/88: He also stated that he was taking into consideration consideration the plea of guilty, the age of the defendant his virtually clear record and that one illegal immigrant was a relative. However, he said that the facts are that they were employed and two were not on the facts relatives and assuming fifteen months was the tariff imposed a nine-month term.

5. The first ground of appeal was that the sentence was too servere and/or manifestly excessive. The second to the sixth grounds of-the appeal appear to be reasons why it is thought that the sentence was too severe.

6. Ground 2 was that the Magistrate wrongly thought that two of the three illegal immigrants are not relatives on the agreed facts. In fact the second was related by marriage and the third was a clansman of the same village. It was Mr Brook Bernacchi's submission on this ground that the magistrate was wrong to look upon them as nonrelatives He pointed out that there was nothing in the agreed facts to indicate that they were not relatives and that a statement had been made by Counsel for the Appellant in mitigation in the Court below that they were distant relatives. In those circumstances, if the Magistrate only listened to the plea in mitigation and did not hear any evidence, he should have accepted the view of the facts most favourable to the Appellant. In this respect, he relied upon the case of The Queenv. CHUNG Chiu-fat, Criminal Appeal No. 402/T986 and the case of Newton (1983) 77 Crim. App. Rep. 13.

7. Mr Wong who appeared for the Crown argued that in paragraph 5 of the brief facts of the case, it was said that PW3 introduced PW2 to the Appellant. He regarded with some scepticism the appellant' s contention that PW2 was a distant relative. He also pointed out that the only one of the three illegal immigrants, who was stated to be a relative in the brief facts, was PW3, who was stated to be the nephew of the appellant.

8. The significance of the relationship of the illegal immigrant to the person charged with this offence is relevant to the question of sentence as is clear from earlier authorities in this Court.

9. In The Queen v. Tse.Chan Lit and another, Criminal Appeal No. 590 of 1978, Leonard J. set aside a prison sentence imposed on the appellant for aiding and abetting three illegal immigrants to remain in Hong Kong because one of the illegal immigrants was his "god-son''. He said:

"As to the 2nd appellant, he was what is known in translation as a 'god-father' of one of the three illegal immigrants. He assisted all three on that basis. This seems to me to have been the act of a decent man. There was no question of his being engaged for the purposes of reward and although he was not strictly speaking relative of any of the three he helped them all three equally. He was however reimbursed for his help to one by a payment from an aunt of that particular illegal immigrant. Here there was as is conceded the Crown no pre-arrangement. There is no element of reward in the sense of the matter being a profitable business.''

Later he went on:

"Opportunists who seek to make money by means almost of blackmail from the plight of illegal immigrants are deserving of condign punishment. This was not such a case."

And later on he said:

"I have come to the conclusion that an immediate custodial sentence was not appropriate in his case. It would not have been considered appropriate had the person who was described as his 'god-son' being the sole illegal immigrant helped. The fact that two others were helped and that he received some reimbursement as a result of having helped one to my mind does not change the issue. He stood in the position of a relative to one of the illegal immigrants and it is because of that that I do not think that an immediate custodial sentence was appropriate in his particular case, I should have thought the proper sentence to be imposed was 'if he could afford to pay it' again a substantial fine. In saying all this I do riot mean for one moment to detract from what was said in Application for Review No. 6 of 1977 namely that the offence is one which except in the rarest of cases is deserving an immediate custodial sentence. I consider that where a relative or one who stands in the position of a relative is concerned the rare case has occurred."

10. He expressed the view that a fine was appropriate but as the Appellant had spent time in prison he went on to allow the appeal and to reduce the sentence of release imprisonment so that it resulted in the immediate of the appellant.

11. That case was followed by Gacia J. in Leung Chun Chung v^. The Queen, Criminal Appeal No. 509/1980. In that case, it was accepted by the learned magistrate that the appellant was the uncle of one of the illegal immigrants and in fact was related by marriage to the other. Following the judgment of Leonard J. in the above mentioned case, he considered that the case he was dealing with was one of the rare cases mentioned in that judgment. He therefore allowed the appeal and set aside, the sentence of 12 months imprisonment and imposed a fine of $5,000 instead.

12. In The Queen v. Cheung Wing-kwan, agistracy Appeal No. 638/1984, Bewley J. had a similar case involving 2 illegal immigrants, one of whom was the appellant's 21year old niece and the other her clansman. The above 2 cases were quoted to the judge who bearing in mind that the appellant had already completed 2 months of his sentence allowed the appeal and reduced the sentence to such sentences of imprisonment as would allow his immediate release.

13. In the present case, the appellant has been on bail since his conviction pending the hearing of his appeal against sentence.

14. The appropriate sentences for offences of this sort came up for discuss on in the Court of Appeal in the Queen v. Law Chuen-fook, Magistracy Appeal No. 593/1988. Judgment was delivered on the 19th August 1988. It was accepted that the appellant in that case engaged the immigrants as casual workers on a lighter and paid them a salary of HK$5,000 together with board and lodging. He did not ask for their identity documents, but on the 5th day of the month they admitted to him that they were in fact illegal immigrants from China and did not have any identity cards Nevertheless, the appellant continued to employ them until the time that all were arrested.

15. The Court of Appeal had this to say:

"Very recently in So Man King this Court reconsidered the situation with, regard to off ences committed by illegal immigrants themselves. In so far as they are concerned the circumstances with regards to their presence in Hong Kong are unlikely to vary greatly from one immigrant to another. Nor generally speaking, are illegal immigrants likely to have much to offer by way of mitigation The situation is such that guidelines from this Court can play a most useful part in ensuring consistency of sentence and preventing disparities that would otherwise become immediately obvious.

On the other hand, the circumstances which give rise to the charge of aiding and abetting may vary tremendously. Towards one extreme may well be, for example the daugther who conceals her aged and sick mother so that the mother may see out the end of her days in the comfort and love of her own family. At the other perhaps we may find the greedy contractor who engages a large number of immigrant workmen at wages considerably below the going market rate.

    But all who are guilty of the offence of aiding and abetting have one thing in common. To some extent, at least, they encourage yet others to seek refuge here, thereby underminding the policy behind the sentences imposed for the principal offenders, that is, to deter would-be illegal immigrants from putting their intentions into practice. This is particularly so where opportunities for employment are offered for it is the hope of substantially higher wages which present is one of the principal attractions. If a would-be illegal immigrant knew that his hope of employment was unlikely to be fulfilled, he would be much less inclined to take the gamble of smuggling himself here. Therefore although we agree with the view taken in the first of the authorities to which we were referred this morning where the then Chief Justice held that except in the rarest cases the offence was one which deserved an immediate custodial sentence we feel it inappropriate to suggest any particular period of imprisonment as being in general suitable for those convicted of aiding and abetting, save to say that those who offer opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed upon the immigrants themselves.''

16. That judgment referred to the case of So Man-king in which. the Court of Appeal laid down guidelines as to the proper sentence for an illegal immigrant who breached section 38(1)(b) of the Immigration Ordinance. That judgment, however, recognised that voluntary surrender to the authorities should warrant a substantial discount, and strong humanitarian considerations should always be honoured, even to the extent somethimes of suspending whateverrison sentence is otherwise thought appropriate''. Mr Bernacchi argued, and the Crown conceded that these two recent judgments of the Court of Appeal do not overrule the earlier judgments on the subject of humanitarian considerations.

17. In my view the Magistrate fell into error in thinking he was bound by the decision of the Court of Appeal in So Man King's case, in fact he was not bound by that decision which only laid down guidelines and was not intended to impose a straight jacket to be followed in every case.

18. In my view, this was a stronger case than the case before Leonard J. for reducing the sentence imposed upon the appellant. As the Magistrate did not hear evidence of the closeness of the relationship of the "distant relatives" he should have sentenced on the basis that all three illegal immigrants were relatives of the Appellant. It was not clear on the facts which of the other two illegal immigrants was related by marriage and which was a clansman from the same village. Clearly one was introduced by PW3, but it is not known on the facts which one. I do not think that a convicted aider and abetter could normally rely upon this plea in mitigation in the case of every clansman. The term "clansman'' is too wide and covers a large number of people. The closeness. of the relationship is of importance and a relative through marriage who is not too distant should suffice. Furthermore there maybe closer ties between clansman from the same village, than, even. relatives by marriage.

19. In addition to ground 3 the appellant contended that the learned magistrate did not take into consideration 3 factors namely:

1. that no money had passed;

2. that there was no prior arrangement;

3. that the appellant had been very co-operative with the police.

20. Although the Magistrate had been addressed in respect of these three mitigating factors, he stated in his Statement of Findings:

"In considering sentence, the Court took into account the Defendant's age and the facts of the case and that the Defendant had pleaded guilty at the first opportunity. The Court also took into account that one of the illegal immigrants was related to the Defendant."

Thus the three matters referred to in ground 2 and which have been relied on as mitigating factors in earlier cases of this sort were not expressly referred to by the Magistrate in his judgment.

21. Evidence was also produced before me with the consent of the Crown to establish that the appellant is a very sick man. Mr Bernacchi urged me to hold that on this ground alone, his appeal should be allowed.

22. Taking all the above matters into consideration, I was of the view that the sentence was too severe and that following the judgment, in particular, of Leonard J., the sentence should be set aside and a fine of $5,000 should be imposed.