R. v. PHAM DUY SON and Others

IN THE COURT OF APPEAL

1996, No. 631

(Criminal)

______________

_______________

______________

J U D G M E N T

______________

Mortimer JA (giving the judgment of the Court): On 24 October 1996, Pham and Nguyen were found guilty of being members of a crew of a vessel bringing illegal entrants into Hong Kong. Luu was found guilty of assisting the passage of illegal entrants into Hong Kong and Phung pleaded guilty to being the owner of a vessel entering Hong Kong with illegal entrants on board.

2. The owner was sentenced to 2 years and 9 months after his plea of guilty and the others each to 2 years and 3 months imprisonment. Luu seeks leave to appeal out of time on the basis that he did not understand the procedure. We have him the benefit of the doubt and give him leave to present his application.

3. They each seek leave in those circumstances to appeal against sentence.

The facts

4. Phung bought a vessel for about 13 million dong to bring the illegal entrants from Vietnam to Hong Kong. He recruited the other applicants to help him in his endeavour and for 1 million Dong each he transported 23 illegal entrants from Vietnam to Hong Kong. They intended to obtain work here, not to seek asylum. On 12 July 1996 a number of those illegal immigrants landed from the ship somewhere near Tuen Mun. On 12 July the vessel was boarded by the customs authority in waters off Tuen Mun. The applicants were found on board with 6 of the remaining illegal immigrants. The remaining illegal immigrants in the charge were later arrested on shore near where they had disembarked in several groups. The vessel was found to be sea-worthy and, so far as is known, properly equipped for the voyage for this number of passengers and crew. Some of the aggravating features which are found from time to time in this type of offence were therefore missing.

5. On interview, each of the applicants admitted their part in the enterprise.

The sentence

6. The judge was concerned whether the tariff for these offences ought to be the same as for those who bring illegal immigrants in by ship from China. He rightly recognised that for such activity the guidelines laid down by the court are, after trial, 5 years for the captain and 4 years for a member of a crew.

7. Having examined the question which he posed for himself, he distinguished immigrants brought in from Vietnam and those who are the owners and crew members of the ships involved from those which come from China. With this in mind, for the owner and captain, he took 36 months rather than 5 years as his starting point after trial, and reduced that for Phung's plea to 2 years and 9 months. That is a very limited reduction of sentence if the judge's starting point had been correct.

8. For the others who were convicted after trial, he took 2 years and 3 months as the starting point rather than the 4 years in the guideline.

9. Each of these applicants now asks for a reduction of their sentences on the grounds of the hardship caused to them by having to serve a sentence here in Hong Kong away from their families in Vietnam. In the case of each, his family is suffering because of his absence. Also, this Court understands that it will be difficult in prison for those who do not speak the local language.

10. We turn to the judge's approach to sentencing. We can see no good reason for the judge to departing from the guidelines for this type of offences which this Court has approved. It is not appropriate to distinguish between the captains and crews of vessels because they happen to come from Vietnam rather than China.

11. In these circumstances, so far as the captain is concerned, the judge ought to have started in the region of 5 years, and ought to have then reduced that sentence to approximately 3 years for the plea. As it is, the sentence that he passed was one which was properly within his discretion. The sentence of 2 years and 9 months was a lenient sentence in the circumstances but is not one with which we can interfere.

12. As for the other applicants, as members of the crew and assistance in this enterprise, after trial the judge ought to have had in mind a sentence of about 4 years imprisonment. In the result, therefore, the sentence of 2 years and 3 months passed on each of these applicants was far too lenient. But in mercy, we do not propose to interfere.

13. In those circumstances these applications are refused.

Power Atg CJ: I wish to add only that I am in full agreement with all that has fallen from my brother Mortimer JA. We are of course moved by the conditions of poverty that so many who live in Vietnam must endure as we are, by the family hardships which we are told by each of the applicants, their families must suffer. We have, however, a duty to the people of Hong Kong which we must fulfil by imposing proper sentences upon those who attempt to bring illegal entrants into this Colony. As my Lord has said, the judge in our view erred in that he was too lenient. The message which we must send to anyone like minded is that they will face penalties greater than those imposed in the present matter should they be found to have committed similar offences in the future.