HKSAR v. CHAN LAI CHOI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.166
(Criminal)

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J U D G M E N T

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Power, Ag. Chief Judge H.C. (giving the judgment of the Court):

1. The applicant faced one charge of assisting the passage of unlawful entrants. That charge read that he, on 13th November 1996, assisted the passage of five named unlawful entrants. One of those unlawful entrants was Lam Wai. The applicant pleaded not guilty to that charge and was convicted after trial before Judge Chua in the District Court and sentenced to imprisonment for four years. He now seeks leave to appeal against both conviction and sentence. He represents himself in his application for leave to appeal against conviction.

2. It was the prosecution evidence that a group of policemen, on anti-illegal immigrant patrol on 13th November 1996 at about 6:45 a.m., saw FP1360, the applicant's taxi, with passengers proceeding on Tai Mong Tsai Road. By the time the police were in a position to intercept the vehicle it had disappeared. Shortly thereafter, at 6:53 a.m., a police officer saw it again on Yung Shu Road. It was then being driven by the applicant but had no passengers. At about 7:00, a matter of minutes later, it was seen proceeding empty in the direction of Wong Shek Pier. At 7:02, it was seen coming from the direction of the pier but it was not seen whether or not it had any passengers. Some 6 minutes later at 7:08 it was again sighted by a police officer and he was able to see that it contained a driver and passengers and that three women and one male alighted therefrom. They were chased and intercepted along with ten others, all of whom were unlawful entrants.

3. At 7:19, some 10 minutes later, the taxi was seen again proceeding towards Wong Shek Pier and at 7:21 it was seen going in the opposite direction. It then stopped 20 metres from the entrance to Chek Keng Road, the horn was sounded three times and the defendant was seen to beckon and say, "Hurry up, get in the car." Three females and two males got in and the vehicle drove off.

4. The vehicle was stopped at Yung Shu Road and the applicant and the five passengers were then apprehended. All five were unlawful entrants. The applicant was questioned by a police officer who was PW3 at trial.

5. The judge in her Reasons for Verdict has set out the evidence given by PW3:

"He said when he asked the defendant where he picked up the passengers, the defendant told him it was at the car park at Pak Tam Chung. He had then asked where they wanted to go and the defendant answered they had told him they wanted to go to the urban area. He asked where in the urban area but the defendant did not answer. So he asked the defendant why he had taken them to Yung Su Au if they had asked to go to the urban area. Again the defendant did not answer, and he told the defendant that he had seen him let off three females and a male at the same spot 20 minutes earlier. The defendant denied this. He then took the defendant back to the taxi where PW2 (another police officer) told him the five persons in it were, in fact, illegal immigrants. He thereupon at 7:35 a.m. arrested the defendant for aiding and abetting illegal immigrants. After the caution the defendant said, 'Ah sir, as long as there are passengers I would take them onto my vehicle.' He searched the defendant and found $1,300. The defendant's record of interview conducted at 2:45 p.m. the next day was admitted in evidence without challenge. It is exculpatory."

6. There were two quite separate incidents involving two group of persons, each group being composed of unlawful entrants. The trial judge clearly used both of these incidents when convicting the applicant, although only one of them had been the subject of a charge. This is apparent from what she said in her Reasons for Verdict as follows:

"I believe the officers' evidence that on that weekday at that time of morning there were few people or traffic about. I accept PW1's evidence that the defendant had dropped off four passengers at the lay-by before the five he carried to the lay-by. I accept as true PW2's evidence that after the three-horn signal the five illegal immigrants named in the charge had boarded his taxi and he had taken them where others were hiding in the bushes near the lay-by. I expect this was the arrangement he had made for suitable remuneration.

I expect the defendant had plenty of times to think of a story when he gave his answers in the interview the day after his arrest. By and large he stuck to the same story in the witness box. But during that interview, in question 21, he had been asked the fare and he had replied that he had received $50. I expect when he was released on bail he had decided to check what the fare in fact was from the car-park to the lay-by, and discovered that it was $38.10. So in the witness box he said although that was the fare, the passenger left him $50. However, in answer 26, he said he again received $50 However, in answer 26, he said he again received $50 from the next lot of passengers. This leaves me with a picture that at about 7:30 am, 13 November, Sai Kung Country Park was awash with generous over-tipping hikers. I think this is unlikely.

The prosecution, having proved the charge beyond reasonable doubt, the defendant is convicted of the charge."

7. The first incident involving the four unlawful entrants was what is usually termed similar fact evidence. While it is true that there does not appear to have been any objection to it, similar fact evidence is only admissible if it conforms to certain conditions. The trial judge does not anywhere indicate that she realized that she was dealing with similar fact evidence, nor does she indicate any basis upon which it was admitted. It does, however, seem to us that it was clearly admissible not only because the facts of the first incident bore such a striking similarity to the facts of the offence charged, but also because it was evidence that could properly have been admitted to rebut the defence which the applicant had raised in his cautioned statement and which, indeed, he placed before the court in his evidence, i.e. that on that morning he was going about his lawful business. There was, however, a failure by the judge properly to direct herself in relation to this evidence with which we will deal later.

8. We turn, before so doing, to the complaint made by the applicant as to the conduct of his counsel. He has said, in his written grounds, that:

"the defence lawyer who represented me was irresponsible and did not try his best. After he had been employed as my defence lawyer, he had never arranged any conference with me nor asked me anything related to my case all along. I did remind my lawyer that there was an illegal immigrant who was a very important prosecution witness and told him that it was a must for him to call this important witness to give evidence in court."

The illegal immigrant was the person named Lam Wai.

9. Because of this allegation, we asked counsel to make his comment thereon. He has, in a letter, stated that he did his best to defend his client during the trial; that he had a conference and a site visit with him; that, as regards the illegal immigrant, he had the benefit of going through the statement of that person and took the view that, if he were to testify, his evidence would be prejudicial to the defence case. He says he explained the situation to the appellant in the presence of the clerk of his instructing solicitors, and that all parties agreed not to call that witness. This letter was read to the applicant who nonetheless persisted in his allegation that his counsel had acted irresponsibly. We then called for the statement of Lam Wai which was also read to the applicant. It would have been gravely damaging to the defence had this person been called as a witness. There is nothing in the statement that could possibly have given him any assistance.

10. The applicant, the statement having been read to him, then said that he had wished the counsel to call the witness because counsel might have got the witness to contradict the matters set out in his statement. Even if what the applicant says is true, and we have very grave doubts in that regard, he clearly does not realize that, if his counsel had called the witness, he would have been bound by his answers and could not have asked the witness to contradict the matters about which he gave evidence. It is true that the witness was offered for cross-examination, but counsel clearly acted in his client's best interest when he declined that offer. The risk that the answers of the witness would damage his client was one which prudent counsel could properly decline to run. We do not accept that there is any merit in the complaint that has been made against counsel.

11. We return to the admission of the similar fact evidence. It is true that the judge failed properly to direct herself but we have no hesitation in holding that the evidence was admissible. There was, therefore, no miscarriage of justice and we are satisfied that it is a proper case in which to apply the proviso.

12. The applicant is given leave to appeal against conviction. The hearing of the application is treated as the hearing of the appeal and the appeal is dismissed.

13. We turn now to the question of sentence.

14. It is urged, by Miss Remedios who appears for him on sentence, that the judge did not give sufficient weight to the fact that there was minimal risk to the passengers being carried and that he did not take into consideration the role which the defendant played. It is submitted that the sentence of four years, these matters not having been given full weight, was manifestly excessive.

15. The judge said in her Reasons for Sentence:

"Although the evidence showed he had made several of these journeys, the officers, having observed him pick up and deliver in all, nine, I will sentence him on the basis of the charge which is, that he had assisted the passage of five unauthorised entrants. In a sense he was an ideal person with his New Territories taxi to convey passengers from one place to another.

I use a starting point of 5 years. I accept, although it has not been put forward, that the journey was short, and in a sense, because it was on land, it was less dangerous for the passengers. So I think for that reason I will deduct from the starting point 4 months, and I will deduct a further 8 months for his clear record. The sentence he will serve is 4 years."

16. Offences which involve the carriage of unlawful entrants from another country into Hong Kong must be distinguished from cases such as the present one, in which the passage of unlawful entrants who have already entered Hong Kong is assisted. The former offences involve, we are satisfied greater culpability. It is true that this aspect of the matter was not adverted to in the case of Yu Man-wai, Criminal Appeal No. 160 of 1996, one of the cases cited to us today which involved the passage of unlawful entrants within Hong Kong. In that case the court was, however, primarily concerned with the reckless driving of the offender which placed all 11 passengers, 10 of whom were pregnant, in a position of acute danger. Even so, his sentence overall at the end of the day was one of 44 months, i.e. 3 years and 8 months, a lesser sentence than that imposed upon the present applicant.

17. The trial judge, before fixing the starting point of five years, referred to Wong Ying-lung, Criminal Appeal Case No.52 of 1994, which lays down a guideline indicating that the starting point for sentence on the captain of a vessel bringing unlawful entrants into Hong Kong should be five years. The trial judge, when assessing starting point in the present case, seems to have equated the applicant's offence with that of the captain of a vessel bringing unlawful entrants into Hong Kong. Having started at five years the judge then deducted four months because the offence had occurred on land, and a further eight months because the applicant had a clear record.

18. Mr. Blanchflower, who appears for the respondent, points out to us that the trial judge was following previous decisions of this court. These, however, deal, almost without exception, with cases where the offences were committed at sea. They must be distinguished from the present case. In the present case, the applicant had no part in the bringing of the unlawful entrants from China into Hong Kong and was not involved in any carriage by sea. After they had landed he transported them, on what was an otherwise normal taxi journey, from one part of the territory to another. His culpability cannot, we are satisfied, be equated with that of a captain of a vessel bringing unlawful entrants into the territory. We consider that an appropriate starting point would be three years. Although not bound to do so, we will, so that no sense of grievance will be engendered in the applicant, follow the approach of the judge and give him credit for his clear record. We do so by reducing the sentence of three years to one of 2 1/2 years.

19. The application for leave to appeal against sentence is allowed. The hearing of the application is treated as the hearing of the appeal and the sentence is varied to one of 2 1/2 years.