HKSAR v. HUI KING

1997, No. 437
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Rogers, J.A. (delivering the judgment of the Court) :

1. The Appellant was convicted on 23rd July 1997 on his own plea of guilty of being a member of the crew of a ship entering Hong Kong waters with unauthorised entrants on board. The Appellant was the helmsman of a motorised sampan and there were 4 men, 11 women and 1 child on board. There were no safety harnesses and the boat was travelling at night without navigation lights.

2. The District Court Judge took as a starting point a period of 5 years' imprisonment. That, in our view, is an appropriate starting point for an offence of this character. Although I would mention that the particular case referred to by the District Court Judge may have been misnumbered, that is beside the point : there have been a number of other cases in which the same starting point has been adopted. The Judge gave a full discount of 1/3 for the plea of guilty and indeed gave a further 1 month discount because he was under the mis-impression that the 1 month that the Appellant has spent in police custody would not be credited against his sentence.

3. The Appellant has applied for leave to appeal out of time and put in written submissions as to why his sentence should be reduced. These can be summarised as all personal matters. The main matter upon which he concentrated his submissions before us was that because of his extreme short-sightedness he was suffering particular difficulties in prison. He also has an aged mother and two sons and a wife in China whom he wishes to look after.

4. Whilst, of course, we have sympathy for his condition and we understand his desire to look after his relatives, none of the matters which have been raised by the Appellant constitute grounds upon which it would be proper for us to reduce the sentence.

5. In the circumstances, this appeal is without merit. Leave to appeal is accordingly refused.

6. At the commencement of this hearing, the Vice-President warned the Appellant as to the Court's power to disallow periods spent in custody thus effectively increasing the period of time which the Appellant must spend in prison. Despite the warning, the Appellant chose to proceed with the appeal.

7. In the circumstances, whereas the loss of time which we order could have been greater, we propose to order a loss of time of 2 months spent in custody.