THE QUEEN v. FUNG SIU-SUM

IN THE COURT OF APPEAL

1993 No. 373
(Criminal)

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JUDGMENT

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Nazareth, J.A. (giving the judgment of the Court):

1. On 2^nd July 1993 the applicant Fung Siu-sum pleaded guilty before His Honour Judge Caird in the District Court to being a member of the crew of a ship which entered Hong Kong with unauthorised entrants on board. He was sentenced to imprisonment for 2 years and 9 months. He now seeks leave to appeal against sentence.

2. The circumstances of the offence are that on 4th March 1993 an unnumbered motorised wooden sampan was intercepted by the police. It was being steered by the applicant. There were five males on board in addition to the applicant. They were all unauthorized entrants who had come to Hong Kong from Yangjiang to look for work.

3. In his written notice of application for leave which he personally prepared himself, the applicant gave the following two grounds of appeal. First, he said that his wife who is suffering from heart disease, has been admitted to hospital is now in a critical condition. They have five children who are young and need care. Second, he said that his hometown had been struck by a typhoon and he lost contact with his family.

4. Before us today he has again referred to his wife being critically ill. He has also referred to the typhoon; but he now says that two typhoons struck and destroyed his home, and that the family now has nowhere to live. He also refers to being detained in the police station for 32 days and says he is very remorseful.

5. The judge in sentencing him took account of the facts that his wife had a heart problem and also his concern about his young children. As to these matters the applicant was aware of his wife’s condition before he left for Hong Kong. Viewing the sentence of 2 years and 9 months against the starting point of 5 years which is referred to in R v. Ng Kit-yuen, 1992 1 HKCLR 170 the applicant was allowed a very generous discount in his sentences being discounted to 2 years and 9 months.

6. Taking all the factors into account, even the 32 days which he spent in custody, the sentence is a lenient one. We do not think it right to interfere. Leave is accordingly refused.