CHAN FAT LOT v. R.

IN THE COURT OF APPEAL

1993, No. 429
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant had pleaded not guilty before His Honour Deputy Judge Tallentire to a charge of being a member of the crew of a ship which entered Hong Kong with unauthorised entrants on board. After the prosecution witnesses and the applicant had given evidence at the trial, his counsel conceded in his final submission that, in the light of the evidence of the prosecution witness who kept observation on the applicant's sampan, the applicant was technically guilty of the offence charged.

2. It was not in dispute that the applicant's sampan had entered into Hong Kong waters with two women, whom the applicant knew had come from the Mainland and had no right to enter Hong Kong.

3. In his application for leave to appeal against conviction, the applicant in his grounds of appeal, which he himself drafted, makes the following points: -

(1) He had no intention to enter the waters of Hong Kong; his entry with the two women was accidental.

(2) He had intended to call the two women to give evidence for him, but the police sent them back to China straight away.

(3) He was prosecuted twice for the same offence: i.e., in case DC 637/92 in which e said he was acquitted, and the present case (DC 304/93) in which he was convicted.

(4) He asks for a re-trial.

4. There is nothing in the first ground of appeal, having regard to the concession made on his behalf by his counsel in the course of the trial. Quite clearly, the evidence showed conclusively that he entered into Hong Kong waters with two women, knowing that he had no right to bring these two women from China into Hong Kong.

5. There is nothing in the second ground of appeal, in that there had been adjournments to enable him to call the two women to give evidence. But no witnesses were called by him at the trial.

6. On the third ground, the trial judge, in his Reasons for Verdict, noted that the two cases concerned two charges in the same form and on the same facts. The judge noted that DC 304/93 was the subject of this trial and DC 637/92 was the subject of an order he had made earlier on the invitation of the Crown and prior to the commencement of this trial. We were told by counsel for the Crown this morning that DC 637/92 was in fact brought without the necessary consent of the Governor and therefore a nullity. That case should properly have been withdrawn. However, the judge made an unusual order, to the effect that that earlier charge was to be left on the file and not to be proceeded with without his leave. He further ordered that the earlier charge was to be dismissed on an offer of no evidence by the Crown once the present case, i.e., case DC 304/93, was resolved. This procedure seems to us to be incorrect, but in the event the Crown did offer no evidence in case DC 637/92 after the conclusion of this case.

7. In our judgment, the applicant did not suffer any prejudice and could not have been in a position of double jeopardy. We treat the order made by the learned judge in DC 637/92 as leave to the Crown to have that prosecution withdrawn. There is, in all the circumstances, no injustice done to the applicant and this ground of appeal must also fail.

8. His request for a re-trial has no merits and that request is refused also.

9. Application for leave to appeal against conviction is refused.

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10. On the evidence as fortified by the concession made on the applicant's behalf by his counsel, the learned judge, quite properly in our view, convicted the applicant as charged. He noted, however, that the facts were very much in dispute and their resolution was crucial as to sentence.

11. As the applicant is also seeking leave to appeal against sentence, it is necessary to consider the facts briefly. As the judge put it: -

" In essence the Crown case was that the defendant was delivering the two ladies to Hong Kong whereas the defendant claims that they were simply out for a joy ride and had strayed far from their initial position because of matters I shall refer to later."

12. The first prosecution witness, whose evidence the judge accepted, stated that he observed the approach of the applicant's sampan and alerted the second prosecution witness, who was on another craft, to intercept the sampan. The applicant did a U-turn in his sampan as he was about to be intercepted.

13. The applicant gave evidence, saying how he had entered Hong Kong waters by mistake while he was on a joy ride with two women.

14. The judge accepted the evidence of the prosecution witnesses and rejected that of the applicant.

15. In his application for leave to appeal against sentence, the applicant said he has a wife, a daughter (3), a baby (13 months) and a father (87). He himself was 19 years of age at the time of the offence. He said he was the sole support for his family. In his Reasons for Sentence, the judge came to the view that a correct sentence was one of three years. However, the judge, allowing for "the time he was detained prior" to his appearance in court, reduced the three years to two, years and 11 months.

16. The judge did not seem to be aware that the applicant was detained in police custody under Section 32 of the Immigration Ordinance from his arrest on 28 May 1992 to 26 March 1993, when he was first put into jail custody. The period he was in custody prior to his appearance in court was therefore two days short of ten months, for which period credit ought to have been given to the applicant. He was allowed but one month. The two years and 11 months will therefore be reduced by a further period of nine months, resulting in two years and two months.

17. The application is allowed, we treat the hearing of the application as hearing of the appeal and allow the appeal and reduce the sentence in the manner already indicated.