R. v. WONG KAM

IN THE COURT OF APPEAL

1995, No.168
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant pleaded guilty to a charge of assisting the passage within Hong Kong of unauthorized entrants. The particulars of that charge read that he on 2nd January 1995 assisted the passage of seven unauthorized entrants.

2. The facts were that at 19:45 hours on 2nd January 1995, a police patrol boat observed the vessel being steered by the applicant sailing towards Sha Kiu from the direction of Mainland China. The vessel was unlit. It was intercepted and on board were found the defendant and eight passengers - 4 males and three females. One of the females were found to be eight months pregnant. A receipt for the amount of $2,300RMB was found on one of the unauthorized entrants. A piece of paper bearing the names of four persons, their telephone numbers and amounts ranging from $2,800 to $4,000RMB was found on the defendant. After arrest he admitted that he was recruited by a person called "Chat Chai" in China to convey the unauthorized entrants to Hong Kong for payment of $1,600RMB. The pieces of paper that were found on him were confirmed to set out the amounts of the fees that were to be collected from Hong Kong relatives of the entrants.

3. There was no life saving equipment and there was no fire fighting equipment on the vessel. On board was a 5-gallon metal tank full of petrol.

4. A surveyor's report stated that the hull was in satisfactory condition but that there was no life-saving appliance, no fire fighting appliance and that there were no navigation lights fitted for night operation. The surveyor was satisfied that the vessel was not appropriately equipped and was not suitable for carrying passengers for the voyage between China and Hong Kong.

5. The trial judge when sentencing said:

"The boat in which you carried these people is considered by the marine surveyor to be an unsafe boat."

This wasn't strictly correct. It was a sound boat but the marine surveyor was satisfied that it was being unsafely operated. This was not, it must be said, the situation, which is commonly before the courts in Hong Kong, where an unseaworthy boat is being used to bring unlawful entrants from China.

6. The trial judge indicated concern also that the applicant had carried "at least 10 people". On the facts this does not seem to be correct, nor was he so charged. The judge was rightly concerned that the boat was "overcrowded and which had no life belts, and no navigation lights". He also made reference to the fact that there was "at least 5 gallons of petrol aboard" the boat.

7. When sentencing the judge took into account the personal circumstances of the applicant and then he went on to say:

"I have to tell you that the maximum penalty in Hong Kong for the offence you have committed and pleaded guilty to is life imprisonment. The Court of Appeal in Hong Kong, which is a superior court to mine, has held that sentences as high as 9 years should be considered for offenders, such as yourself, who ship human beings to Hong Kong in unsafe vessels, without due regard for their safety."

He then referred to the case of R. v. NG Kit-yuen (1992) Hong Kong Criminal Law Reports Vol.I at p.170. In that case the court held, and I read from the headnote:

"2. Sentencing courts should give weight to the following circumstances which

(i) were the illegal immigrants concealed in a place from which escape would have been difficult?

(ii) was the vessel by reason of poor maintenance or age in an unseaworthy condition?

The sentence of five years imprisonment after trial indicated in R. v. Lam Kon-man Crim.App. No.329/1990 has no application to cases involving these considerations.

3. Where both of the circumstances referred to above exist a starting point as high as nine years would be appropriate. That period is arrived at by adding two years for each of the aggravating circumstances to the 5 years indicated in R. v. Lam Kon-man (supra)."

The argument which has been advanced today by Mr. Wilson Chan who appears for the applicant is that Ng Kit-yuen has no application to the circumstances of the present case. He says this was not a vessel which by reason of poor maintenance or age was in an unseaworthy condition and that the appropriate starting point for sentence would have been five years. We cannot agree. We see little or no difference between a safe vessel being unsafely operated and an unsafe vessel. We are satisfied that this vessel, there being no running lights, no life saving equipment and no fire fighting equipment, was safe vessel which was being unsafely operated to the danger of those being carried in it and that the seriousness of the offence is much the same as where an unseaworthy vessel is being operated. Each case has to be judged on its own facts. The load, one of whom was 8 months' pregnant, and the sea condition rendered these inadequacies a danger factor for consideration. The additional factor of dangerous concealment not being present an appropriate starting point would have been seven years which was, in the outcome, the starting point taken by the judge.

8. Mr. Chan also suggested that the judge improperly placed weight upon the carriage of 5 gallons of petrol as it was not shown that this made the situation any more dangerous. The judge by his reference to it did seem to be indicating that it was an aggravating factor but he made no finding in that regard.

9. The proper sentence after trial would have been one of seven years. We are satisfied, however, that discount of one year for the plea of guilty was less than should have been given. We consider that the applicant was entitled to a discount of two years and we would therefore reduce the sentence to one of five years. There is further, and the trial judge in an addendum to his judgment conceded that this should have been given, an entitlement to an additional discount of one month because of time served in the custody of the Immigration Authorities.

10. The application is allowed. The hearing of the application is treated as the hearing of the appeal and the sentence of six years is reduced to one of four years and eleven months.