THE QUEEN v. LEUNG YUN SHUI

IN THE COURT OF APPEAL

1995, No.448
(Criminal)

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J U D G M E N T

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Bokhary JA:

1. This is an application for leave to appeal against conviction and sentence. It comes to us from the District Court.

2. The applicant is a man in his late 20's. He and another man were jointly charged with being members of the crew of a ship which entered Hong Kong with unauthorised entrants on board, contrary to s. 37C(1)(a) of the Immigration Ordinance, Cap. 115.

3. What had happened was this. In the small hours of November 24, 1994, a police launch picked up a small craft on its radar. The small craft was coming from the direction of Shekou in China and was heading for Lau Fau Shan. After it had entered Hong Kong waters, it was illuminated by flares put up by the police launch. Thus illuminated, it was seen to be an oyster boat of about 20 ft in length and with a canvas awning amidships.

4. Under the awning were six female unauthorised entrants and this applicant. The other man charged with him was steering the boat.

5. When the case came up for trial judge before HH Judge Britton, the other man, who was the 1st accused, pleaded guilty and gave evidence against this applicant, who was the 2nd accused.

6. In short, the accomplice's evidence was to this effect. He and the applicant were working together in bringing in the six female unauthorised entrants; and he had been recruited by the applicant for that purpose; so that the applicant was only pretending to be a mere unauthorised entrant himself.

7. The judge accepted the evidence of the accomplice, rejected the evidence of this applicant and convicted him as charged accordingly.

8. Applying now for leave to appeal against conviction, the applicant has in fact reiterated his story, and renewed the defence criticism made below of the accomplice's evidence. Unlike this Court, the trial judge had the advantage of seeing and hearing the witnesses in the witness-box. And in accepting the evidence of the accomplice, the judge showed himself fully aware of the caution which one has to exercise when confronted with accomplice evidence.

9. Exercising that caution and taking advantage of seeing and hearing the witnesses, the judge accepted the evidence of the accomplice whom he described as "a simple country lad who was 20 years old at the time of the offence". He found the accomplice an impressive witness. He took the opposite view of the applicant and his evidence, describing the applicant as "a crafty and cunning individual".

10. It seems to us that there is no basis on which an appellate tribunal can interfere with the conclusion arrived at by the judge as to the guilt of this applicant.

11. Accordingly, leave to appeal against conviction is refused.

12. That leaves the application for leave to appeal against sentence.

13. As far as sentence is concerned, the judge imposed a sentence of 4 years, 10 months and 2 weeks by taking a starting point of 5 years and giving an allowance for the 6 weeks which the applicant had spent in the custody of the Immigration Department. In advancing his application for leave to appeal against sentence, the applicant said no more than that he would like us to temper justice with mercy.

14. But looking at what the judge did, it seems to us that the judge has already done that. This a serious offence. The judge has shown as much leniency as he properly could. And we are not in a position to extend any further leniency.

15. That being so, leave to appeal against sentence is also refused.