R. v. TANG SING MO

IN THE COURT OF APPEAL

1995, No. 298
(Criminal)

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J U D G M E N T

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Sears, J. :

1. This Applicant pleaded guilty before Deputy Judge McKee in the District Court on the 24th of March of this year to two offences: one being a member of the crew of a ship which entered Hong Kong with unauthorized entrants on board, contrary to Section 37C(1)(a) of the Immigration Ordinance (Cap. 115) to which he was sentenced to three years and three months' imprisonment, and the second charge being possession of prohibited goods, contrary to Section 7 of 14(1) of the Dangerous Goods Ordinance, Cap. 295, to which he was sentenced to two months' imprisonment consecutively. Against those sentences he makes an application to appeal although the application is only really in respect of the sentence for being a crew member.

2. The facts are very short. On the 26th of January of this year at 8:30 at night, police officers saw an unlit vessel sailing towards Lau Fau Shan. They intercepted it. This Applicant was steering the vessel and when they searched it they found five Chinese females, all illegal immigrants in the cabin. There was also a large quantity of fireworks found in the bow, some 270 kilograms packed in 84 boxes.

3. The Defendant, after being arrested, made a statement under caution in which he said that he had been employed by someone called "Ah Ying" to work on the vessel for $500. He and Ah Ying had boarded the vessel in Tai Ping sailed to Xixiang where they picked up the five Chinese females, they then sailed to Shekou where Ah Ying had disembarked, leaving the Defendant to convey the five and the fireworks to Lau Fau Shan.

4. The Judge, when he came to sentence, had regard first of all, as this was an 18-year old defendant in front of him, to the provisions of Section 109(a) of the Criminal Procedure Ordinance and thought it inappropriate to call for any reports and he said this: "In respect of the first charge, I take as a starting point 5 years' imprisonment, but taking into account the plea of guilty, the age of the Defendant, his clear record and all other mitigating factors impose a term of three years three months." Mr. Loughran, appearing as he does for this Applicant, has put forward very ably a number of submissions and has drawn to the court's attention R. v Wong Yin Lung (1994) No. 52 Criminal Appeals where Vice President Power, giving the judgment of the court, said that the normal starting point for a person who can be described as an ordinary crew member should be four years, and five years for those persons who are involved in the organization of the illegal immigrants being brought into Hong Kong or who really are in charge of the vessel. Mr. Loughran submitted that by virtue of the statement given by the Applicant, he was in reality a crew member and therefore the starting point should be one of four years.

5. In my judgment I do not agree with this approach. This young man knew well that he would be taking on board five Chinese females and was in charge of the vessel that was bringing them into Hong Kong. It may well be as Vice President Power made clear in that judgment that sentencing judges do not have a straight-jacket imposed on them when deciding whether or not a particular guide-line should be followed and it may be on the facts of this particular case, the judge might have taken a starting point of 4-½ years rather than five years, but in my judgment I can see nothing wrong in the approach this Judge made. He gave a discount of just over one third for the plea of guilty and in my judgment, it is clear from his reasons, that he did take into account all the relevant factors namely, the age of the Defendant and his clear record.

6. I therefore can find nothing which in anyway flaws the sentence. It was not, in my judgment, wrong in principle and I would refuse this application.

Mayo, J.A. :

7. I agree and have nothing to add.

Nazareth, V.-P. :

8. I also agree.