R. v. CHU WING KUEN AND ANOTHER

Headnote

Observations on the availability of Reasons for Verdict which were delivered upon recording of verdict.

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Five persons appeared for trial before His Honour Judge Surman on a charge sheet containing 8 individual charges. Of those five, two were convicted - Chu Wing Kuen who was the 1st named defendant and Tsang Kei Pan, the 2nd named defendant. The convictions against Chu, and after trial, were first being a member of the crew, namely the captain, of a vessel entering Hong Kong waters with unauthorized entrants on board and then three separate charges of possession of an altered document intended for the purposes of the Immigration ordinance: a vessel registration book of the vessel "Hoi Fung 76827", a seaman's registration card in the name of Chan Fai Hung and a seaman's registration card in the name of Chan Fa Chu. Chan Fai Hung and Chan Fa Chu were both shown to be illegal entrants.

3. Upon conviction, Chu was sentenced to 4 1/2 years on the 1st charge and 12 months on each of the other charges all sentences to run concurrently. He seeks leave to appeal against the totality of 4 1/2 years imprisonment.

4. Tsang Kei Pan was found guilty after trial of being a member of the crew of a ship entering Hong Kong with unauthorized entrants on board. He was sentenced to 2 1/2 years imprisonment. He seeks to appeal only against his conviction.

5. We shall deal with the matter of Tsang first.

6. The Crown's case was that in the early hours of the morning of 16th March 1991 a police patrol launch was on duty and stopped the vessel "Hoi Fung 76827" at a point off Ap Lei Chau inside the territorial waters of Hong Kong. On board were the five defendants at trial and a number of illegal entrants.

7. As the trial judge stated in the course of his Reasons for Verdict, he found as a fact, and these facts were agreed, that the vessel was stopped inside Hong Kong_. waters; that all the defendants were on board that vessel; that Chu Wing Kuen was the captain; that the other defendants were all crew members and that there were 8 other persons on board. By virtue of section 37K of the Immigration Ordinance, Cap. 115, those 8 persons were presumed to be illegal immigrants unless it was shown on the balance of probabilities that they were not. No such evidence was placed before the trial judge and he found it proved as a fact that they were unlawful entrants.

8. With these facts having been proved, the provisions of section 37C (2) (b) of the Ordinance came in effect in relation to the applicant Tsang. This reads that:

"A person who is a member of the crew of a ship other than the captain shall not be convicted of an offence under subsection (1) if he proves that prior to the commencement of the voyage on which the unauthorized entrant was brought to Hong Kong, he did not know and had no reason to suspect that any unauthorized entrant would be carried on the ship."

Therefore, the onus was on the Tsang to bring himself within those provisions. The trial judge considered a statement made under caution by Tsang to the police in which he accepted that he was on board, that there were 8 persons there but which also stated that he had asked the captain why there should be 5 males and 3 females. It went on that the captain told him that he, that is Tsang, was an employee and he should mind his own business. Tsang gave evidence himself and told a somewhat different story. He said he had enquired but the captain told him that these persons had been hired to catch fish. The trial judge felt that Tsang had failed to show him that he, Tsang, had not been suspicious of the presence of these persons on board.

9. The captain himself had given evidence and that is a matter which the trial judge bore in mind. The essence of his judgment is that he did not believe the applicant Tsang.

10. The applicant has complained to us that sufficient consideration was not given to that which he said as to his lack of knowledge. He has in effect repeated in his grounds of appeal the evidence which he gave at trial and which was disbelieved by the trial judge. He produced to us today various documents which he has received since his conviction. These consist first of a statement as to his family circumstances which comes from the office of the Notary Public in Sanwei town in Guangdong province, second, a medical certificate in relation to his daughter, third, a letter from his daughter setting out the family circumstances and making a plea on humanitarian grounds that he released, fourth, a similar letter from his son and, fifth, a further medical certificate speaking of illness in his family. These matters do not, of course, affect the conviction.

11. The assessment of witnesses was a matter entirely within the province of the trial judge as was the evaluation of the evidence they gave. He was aware of the statutory defence provided under section 37C (2) (b). He was entitled to come to the conclusion he did and we see no reason to consider that this conviction was either unsafe or unsatisfactory. The application for leave to appeal against conviction is therefore refused.

Sentence

12. As to the sentence on Chu Wing Kuen. He was the captain of the vessel. He set out on the journey knowing full well that he was bringing unauthorized entrants to Hong Kong. He denies knowing that the documents, the subject of charges 2, 3 and 4, were forged documents, but there was clear evidence at trial that that is what they were. He said that, in the course of the journey, he realised the bringing of unauthorized entrants to Hong Kong could well result in a sentence of imprisonment if he were found out. He said he changed his mind but was subsequently forced to come into Hong Kong waters by the state of the sea at the time.

13. The trial judge had evidence before him that the state of the sea was not as the applicant suggested it was. He disbelieved the applicant in relation to the matters which he advanced.

14. The same matters are advanced to us in relation to his sentence. He has further suggested that the sentence he received for 8 unlawful entrants was greater than that received by another captain of a ship some little time ago of 4 years for 20 unlawful entrants. He has also made a plea on humanitarian grounds.

15. The trial judge considered the fact that Chu, as the captain of the vessel, required a higher sentence than that which he would pass, and in fact did pass, on crew members. He bore in mind the totality of the criminality, that is being the captain of the ship and being in possession of these forged documents two of which related to illegal immigrants and purported to show them as seamen. The sentence passed was well in line with the norm of sentences passed for offences of this nature. We have considered that which the applicant Chu has said to us today but we are not persuaded that the sentence should be altered. It is not manifestly excessive. We would, therefore, refuse the application in respect of sentence.

16. Before leaving this case, we wish to make reference to the delay in the Reasons for Verdict being placed on the file. The trial judge gave his reasons in open court on 7th August 1991, a practice to be commended.

17. Unfortunately, because the trial judge went on leave the Reasons for Verdict were not available until 28th October 1991.

Section 80 of the District Court Ordinance reads:

"Before pronouncing judgment, a judge shall record his verdict and at the same time or so soon thereafter as may be shall also place on record a short statement of the reasons for the verdict."

We certainly do not wish to detract from the practice of the judge to give a reasoned judgment at the time but if he does so then he should ensure that the recording or the notes are transcribed and placed on the file as soon as possible after the Reasons have been delivered. Because of the delay in doing that in this case the matter of consideration for legal aid and the hearing of the appeal was delayed. It is the better practice that this should not happen again.