R. v. LAM SHUN AND ANOTHER

Headnote

Bill of Rights Ordinance: Immigration Ordinance S.14 (Part III) BORO applies: challenge incompetent

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicant, Lam Shun, who was 2nd defendant at trial, appeared before Miss Yuen, sitting as a Deputy Judge of the District Court, on a charge sheet which contained separate charges relating to being crew members of a ship entering Hong Kong with unauthorised entrants.

3. There were three defendants at trial, the first being Ng Neung Kwan, the second the applicant in this case and the third, Lam Chi Chun, whose application to this court is in relation to sentence and with which we shall deal later. The first named defendant was the captain and he pleaded guilty and was called on behalf of Lam Shun in the course of the trial.

4. It was the case for the prosecution that, on 7th May 1991, a police launch was patrolling in the vicinity of Nine Pins in a position which was within Hong Kong Territorial waters. A vessel was intercepted. That vessel had no licence nor name carried upon it. The vessel was searched and on it were found nine men, the three defendants at trial and six illegal immigrants.

5. In order to bring their case home the Crown relied on the provisions of sections 37C(1) (a) and 37K(1) and 37K(2)(c) of the Immigration ordinance. The applicant relied on the statutory defence provided under section 37C(2)(b) of that ordinance. That reads:

"(b) A person who is a member of the crew of a ship other than the captain shall not be convicted of an offence under subsection (1) if he proves that prior to the commencement of the voyage on which the unauthorized entrant was brought to Hong Kong, he did not know and had no reason to suspect that any unauthorized entrant would be carried on the ship."

6. In order to support that defence, the burden is on the balance of probabilities as the trial judge was aware. Evidence was called. The applicant said he was a fisherman who had been introduced by a friend of his Chan Lam to work on the boat. This was the first time he worked on a boat as an odd job worker. When he did boarded the boat he noticed that there were six or seven other people on board but he did not ask the captain what they were doing there. He said he had been told that the boat was going to Guangzhou to tow another boat and he simply thought that the other persons on the boat were there for the purpose of assisting in that exercise.

7. The captain gave evidence, and the judge was aware that he had pleaded guilty and had already been sentenced before he came to the box. She found inconsistencies as between the captain's evidence and that of the applicant. One major inconsistency was that the captain said the applicant did ask who the others were and he told the applicant that they were his friends who were getting a lift to Guangzhou.

8. There was a 6-hour journey from Ren Shan to Nine Pins but apparently at no time during that period did the applicant make any inquiry as to who the other persons were. There were also discrepancies as to whether the anchor was or was not pulled up, that related more to the credibility of the captain than directly to the involvement of the applicant. The judge did not accept the matters raised as defence by the applicant and came to her conclusion of guilt.

9. The applicant has to us today reiterated basically that which he had said to the judge. He also filed an application to invoke the Hong Kong Bill of Rights Ordinance. We dealt with that matter at the commencement of the hearing. He had stated in his grounding affidavit that the "interests of justice" required the grant of legal aid and he sought to attack the presumptive sections of the Immigration Ordinance. But we ruled that application to be incompetent in that under the provisions of section 14 contained in Part III of the Hong Kong Bill of Rights Ordinance, and which states in its subsection (1):

"For a period of one year beginning on the commencement date the Ordinance is subject to the Ordinances listed in the schedule."

and Immigration Ordinance, Cap. 115 is contained in the schedule - that meant the Immigration Ordinance may not as yet be challenged in relation to the provisions of the Bill of Rights Ordinance, its articles or sections. Further, we did not consider that the matter was of the complexity which required that legal aid be considered for the applicant. The application was incompetent.

10. We are of the view that the trial judge, aware of the matters relevant to this offence, of the defence which was provided by the Ordinance for the applicant, bore these matters in mind and, having considered the evidence that was given, she came to her conclusion of guilt, a conclusion to which she was entitled to come. It was a matter for the trial judge as to whether she did or did not believe the evidence given. We do not find this conviction to be either unsafe or unsatisfactory.

11. We, therefore, dismiss the application for leave to appeal against conviction.

Sentence

12. As to sentence, both the applicants were sentenced to a period of 3 years imprisonment, both have in effect asked us today to consider the minor roles that they played in his matter - the 1st applicant repeating that he really did not know anything in any event and the 2nd applicant telling us that he had been victimized by the captain and was seasick during the entirety of the journey. They had both come from poor backgrounds and have considerable family difficulties in China. They both asked us to allow them to go back as soon as they can so as to assist their families who, without their financial support, are suffering hardship.

13. However, it must be remembered that taking the risk of bringing illegal immigrants to Hong Kong involves the possibilities that they may be apprehended and, if they are apprehended, that their families will be deprived of their assistance.

14. In passing the sentence she did, the trial judge was fully aware of the background and bore it in mind. She accepted that they had been driven to crime through economic reasons. She equally well accepted that there were no aggravating circumstances in relation to the condition of the illegal immigrants and their transport to Hong Kong. She was fully aware that the role of each was merely that of a crew member. The sentences she imposed are well within the normal tariffs for this type of offence and, sympathetic as we may be to the personal and family difficulties of the two applicants, we do not think that that is a reason for interference with proper sentences. The applications in respect of sentence are both refused.