THE QUEEN v. CHEUNG WING KWAN

Headnote

                Aiding and abetting illegal immigrants to remain - Prison sentence wrong in principle in case of family member who is not acting for financial consideration.

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JUDGMENT

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1. The appellant pleaded guilty to aiding and abetting the remaining in Hong Kong of two illegal immigrants, contrary to section 38(1)(b) of the Immigration Ordinance Cap. 115. He was sentenced to 12 months imprisonment.  He was unrepresented.

2. The illegal immigrants were the appellant's 21 years old niece and her clansman.  They landed illegally in Chai Wan on 15th September.  The girl telephoned him at his home in North Point at 4.15 a.m. and pleaded with him to come and pick her up. When the appellant arrived in a taxi he discovered that she was not alone, but he allowed the clansman also to board the taxi, which was stopped at a police road block soon afterwards.

3. The appellant is 47 and has 3 previous convictions of a dissimilar nature.

4. Mr. Cheng Huan, for the appellant, has referred me to three decisions of my brother judges, all of which emphasise that a distinction should be drawn between a person who helps illegal immigrants for financial gain and a family member who feels he has a moral obligation to do so.

5. In Chan Shing v. R. ⁽¹⁾, Power J. reduced the sentence from 12 months to 6. In Tse Chan-lit and anor. v. R. ⁽²⁾ Leonard J. considered that the proper sentence, in such exceptional cases, was a fine, and in Leung Chun-chung v. R. ⁽³⁾ Garcia J. took the same view.

6. Counsel for the Crown concedes that the sentence in the present case was too severe. I bear in mind that the appellant has already completed two months of his sentence.  I think, in the circumstances, it would be harsh at this stage to impose a fine. I therefore allow the appeal and reduce the sentence to such sentence of imprisonment as will allow the appellant's immediate release.

(1) C. A. No. 573 of 1980

(2) C. A. No. 590 of 1978

(3) C. A. No. 509 of 1980