R. v. WONG KAM FAT

IN THE COURT OF APPEAL

1995, No. 365
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. This is the judgment of the court.

2. The applicant was convicted after trial to assisting the passage within Hong Kong of an unauthorized entrant and sentenced to two years and nine months' imprisonment. He was also convicted on his own plea to attempting to export unmanifested cargo and sentenced to 12 months' imprisonment. The two sentences were ordered to run concurrently, thereby making a total of two years and nine months.

3. These sentences were imposed on 17 May 1995. He did not lodge the notice for application to appeal until 4 December 1995. He was therefore out of time.

4. We note that in another division of this court, in the case of R. v. Kwok Kam Yung, Criminal Appeal No. 365 of 1995, that court in dealing with exactly the same facts reduced the sentence of Kwok Kam Yung. The sentence was reduced to one of six months for assisting the passage within Hong Kong of an unauthorized entrant and the sentence of 12 months for attempting to export unmanifested cargo was ordered to stay. The two sentences were to be served consecutively. The totality for the co-accused was therefore reduced to two years.

5. There is nothing in the facts of the case to show that the culpability of this applicant is any worse than that of Kwok Kam Yung. The facts were that these men assisted the passage within Hong Kong of an illegal immigrant to go back to China. This applicant was seen sitting at the stern and steering the vessel together with the illegal immigrant and Kwok Kam Yung. There were boxes of computer parts on board, the subject matter of the second charge.

6. The applicant, the first accused, was the master of the vessel whilst the second accused was the owner.

7. In the circumstances, we do not feel a disparity of sentences is justified. We therefore allow the application, treat the application as the hearing of the appeal and allow the appeal. We reduce the sentence on the first charge from one of two years and nine months to six months, this to run concurrently with the twelve months on the second charge. The totality is therefore reduced to one year.

8. Upon following the sentences in Kwok Kam Yung (supra), I should have ordered the two sentences in the present case to run consecutively. However, by a slip, I announced that the sentences were to run concurrently. When Crown Counsel pointed out my error, the applicant was already on his way out of the court. In the circumstances we were of the view that he would suffer a very natural sense of grievance if we were to order the two sentences to run consecutively. We therefore refrained from making the order which we were undoubtedly entitled to make, and allowed the applicant to have the benefit of my error.