THE QUEEN v. CHAN PUI HONG

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JUDGMENT

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Macdougall, J.A.:

1. The applicant, who is a single man 22 years of age, pleaded guilty before Judge Chua in the District Court to being a member of the crew of a ship which entered Hong Kong with an unauthorised entrant on board contrary to s.37C(1) of the Immigration Ordinance. He was sentenced to four years imprisonment. It is against that sentence that he now seeks leave to appeal.

2. The facts were that the applicant was one of four fishermen on board a Chinese vessel which was intercepted in Hong Kong waters by Marine Police. Also on board was a 15 year old boy who had been introduced to the applicant by his brother-in-law and whom the applicant had agreed to smuggle into Hong Kong. When questioned by the police the applicant admitted that he had committed the offence.

3. During the course of the address in mitigation in the court below a dispute arose as to whether the applicant had received a financial reward of $200 or whether his reward was to take the form of "teas and dinners". In his cautioned statement he admitted that he was to receive $200 for bringing the boy to Hong Kong, and it was this version that the judge accepted. It seems to us that nothing turns on this. However, the judge took the view that by giving misleading instructions to his legal adviser, the applicant had not exhibited true remorse. She stated that the applicant's plea of guilty was the only mitigating factor, but that since he had been caught redhanded no discount should be allowed for it.

4. Mr. Richard Wong, who appears on behalf of the applicant in this court but not in the court below, submitted that the judge was wrong in failing to give a discount for the plea of guilty, and that in all the circumstances of the case the sentence of four years imprisonment was manifestly excessive.  He referred us to The Queen v. Ho Siu Lun and others (1987) HKLR 1086, a case of an organised enterprise in which 7 illegal immigrants were involved, where this court said that where an offender takes part in the smuggling into Hong Kong of illegal immigrants for a substantial gain, a sentence of 4 years imprisonment is appropriate. That of course was after a contested trial.

5. We are of the opinion that the judge was wrong not to give practical effect to the applicant's plea of guilty and that in view of the circumstances of this case, the bringing of only one person into Hong Kong and for very little financial gain, the sentence is such that it warrants our interference.

6. We therefore allow the application and treating it as the hearing of the appeal, allow the appeal, set aside the sentence and substitute for it for one of 3 years.