R. v. CHAN MUK-SHING

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J U D G M E N T

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Hon. Yang, CJ:

1. This is the judgment of the Court.

2. The applicant was convicted on his own plea by Mr. Justice Kaplan of being a member of a crew of a ship which entered Hong Kong with unauthorised entrants on board contrary to s. 37(c)(1)(a) of the Immigration Ordinance, Cap. 115. He was sentenced to seven years' imprisonment. This is his application for leave to appeal against sentence.

3. The facts are these. At 11 p.m. on the 12th September 1991, marine police officers boarded and searched a Chinese trading vessel. The applicant was the Captain of that vessel and he had seven other crew members with him. Inside separate concealed compartments were a total of 22 illegal immigrants: 18 adult males whose ages ranged from 18 to 61, two females aged 27 and 30 and two boys aged 5 and 6. To gain access to the compartments, the police used crowbars.

4. Under caution the applicant admitted that he had transported the 22 persons on board his vessel from China into Hong Kong waters. He also admitted that he had prepared a secret compartment to accommodate the illegal immigrants on the roof of the cabin of his vessel. He was to receive a reward of RMB$4,400. This would have been paid to him on his return from China by those persons who had originally asked him to bring the illegal immigrants into Hong Kong.

5. Before passing sentence the learned judge heard expert evidence given on behalf of the Crown by Mr. Leung Wing-hong who holds a degree in Naval Architecture and Ocean Engineering and is a member of The Royal Institution of Naval Architect and a Chartered Engineer. The gist of Mr. Leung's evidence was that the condition of the vessel was such that it gave him serious concern about the life-saving equipment and the fire-fighting equipment. The defence called Mr. Andrew Michael Moore, a qualified Master Mariner and Fellow of the Nautical Institute who has been engaged since 1982 as a Marine Surveyor in North London and Hong Kong. The gist of his evidence was that in the event of any imminent disaster, there would be difficulty in escaping for those on board in the compartments.

6. In passing sentence, the judge said this: "There was no mitigation in the case of the applicant except for the fact that he pleaded guilty." But the judge noted the applicant could hardly do otherwise in the circumstances of this case.

7. The fact that there were secret compartments housing people in very cramped circumstances, was a particularly aggravating factor. The judge noted that have been difficult and people were housed in a very tight space. Against that, however, we have evidence to show that the police used a crowbar in respect of the compartment at the fore peak space because the illegal immigrants inside were unwilling to open the hatch cover, which they could have done if they had been prepared to do so.

8. The judge noted that the vessel was technically unseaworthy because of lack of adequate fire-fighting equipment and life-saving equipment. There are photographs showing damaged life jackets and damaged life buoys.

9. Adopting a starting point of five years, the judge added 1¹/₂ years for the fact that the illegal immigrants were concealed in compartments from which escape would have been difficult and a further year for the fact that the vessel was unseaworthy due to the lack of fire-fighting equipment and life-saving equipment.

10. From the total of 7 ¹/₂ years however the judge gave a discount of six months for the plea of guilty. In arguing that the sentence was excessive, it is stressed on behalf of the applicant that: (a) means of ingress and egress were available in respect of the two compartments,namely, the one at the fore peak space and one on the roof near the wheelhouse; (b) the boat was not unseaworthy by reason of poor maintenance or age; and (c) insufficient weight was given to the plea of guilty. A number of authorities were cited in the course of argument. We have considered R v kit-yuen Cr. App. 118 of 1991(unreported) where it was suggested that the Court should always in these circumstances such as these take into consideration two issues for the purpose of assessing sentence, namely (1) were the illegal immigrants concealed in a place from which escape would have been difficult? and (2) was the vessel by reason of poor maintenance or age in an unseaworthy condition?

11. Our attention has also been drawn to two other cases where a discount of two years was given on a plea of guilty in cases of this type: vide Attorney General v NG Shui-mei AR No. 5 of 1991 and Attorney General v WONG Kam-ching AR No. 7 of 1991. Taking all the circumstances of this case into consideration, we are of the view that the judge quite properly took five years as a starting point. But the addition of 1 ¹/₂ years for the difficulty the illegal immigrants might have in escaping was excessive. We would add one year rather than 1 ¹/₂ years in respect of this particular factor. We can find nothing wrong in the other one year that was added for the technical unseaworthiness of the vessel. However, we are of the view that a more generous discount should be given for the plea of guilty.

12. We arrive at what we consider to be an appropriate sentence of six years' imprisonment. We allow the application, treat the hearing of the application as hearing of the appeal, we allow the appeal and reduce the sentence to the extent indicated.