THE QUEEN v. SHUM HO TANG

1996 No. 445
(Criminal)

HEADNOTE

          Assisting the remaining of illegal immigrant - Whether relationship between the illegal immigrant and the person who assisted relevant to the question of sentence - Close relationship is a good mitigation - Factors to be taken into account in deciding proper sentences to be passed for aiding, abetting or assisting illegal immigrants to remain - Appropriate sentences - A suspended sentence or even a fine may suffice in the extreme example of a daughter concealing her aged and sick mother and comforting her out of love and affection - In the case of a greedy contractor who engages a large number of illegal immigrants and exploits them for financial gain, a heavy sentence of imprisonment upwards of four years would be appropriate, bearing in mind the maximum sentence provided under s.37DA for assisting illegal immigrants to remain is 10 years imprisonment and a fine of $500,000.

          S.37DA(1) and s38(1)(b) of the Immigration Ordinance provide for different maximum sentences - If these two offences in effect penalise exactly the same actions, but with penalties of such disparate severity, the continued retention of both may be wrong and one or the other should be repealed.

          The sentence of 2½ years' imprisonment in the present circumstances of the case is manifestly excessive - Appeal allowed - Sentence reduced to 18 months.

-----------------

-----------------

JUDGMENT

-----------------

Wong J. (giving the judgment of the Court):

1. The Applicant was tried in the High Court on an indictment containing two counts; these were possession of arms and ammunition without a licence contrary to s.13 of the Firearms and Ammunition Ordinance, Cap. 238 and assisting the remaining of an unauthorized entrant contrary to s.37DA(1). Upon the prosecution agreeing not to proceed against him in respect of count one, he pleaded guilty to count two. Deputy Judge Wilson sentenced him to imprisonment for two and a half years and against this sentence he now seeks leave to appeal.

2. The prosecution case was that in June 1995 the Applicant brought Shum Tsan-ming, an illegal immigrant to No. 79, Prince Edward Road, 5th Floor, Mongkok, Kowloon where he was staying with Mr. Chan Ming-chu and his family. He allowed the illegal immigrant to sleep on the upper bed of a double bunk which he used to occupy whilst he himself shared the lower bunk bed with one of the members of the Chan family. From June until the illegal immigrant was arrested on 30th September 1995, the Applicant provided the illegal immigrant with money for his expenses.

3. Before us and in his written submission to this Court, the Applicant insisted that he was the uncle of the illegal immigrant whose mother was the Applicant's sister. He said that he did not provide support to the illegal immigrant for the full three months period that the prosecution claimed as he was in Mainland China between 27th May to 1st June 1995 and in prison from 13th June to 5th July 1995. We do not consider relevant whether the Applicant harboured the illegal immigrant for a full three months or a shorter period. The only matter that merits consideration is whether he was a close relative of the illegal immigrant.

4. The Deputy Judge accepted that there was some distant relationship but not a close one between the Applicant and the illegal immigrant. He took a starting point of three and a half years and reduced it to two and a half years on account of the plea of guilty.

5. There is some dispute as to whether the Applicant and the illegal immigrant were closely related. It was stated in the last paragraph of the summary of facts that:

"The Defendant had not asked the Unauthorized Entrant to leave the flat or to surrender himself as he was a distant relative from the village of the Defendant in China."

The summary was read and interpreted to the Applicant which he admitted to be correct. Again, the following question and answer appeared in the Applicant's cautioned statement to the police :

Mr. Hung, who appeared for the Applicant below, told the Deputy Judge that the Applicant was afraid of getting involved because of the finding of the gun and he was trying to distance himself from the illegal immigrant. He referred to the cautioned statement of the illegal immigrant in which the illegal immigrant said that the Applicant was the younger brother of his mother. Counsel, however, conceded that the expression could also mean cousin in the context of Chinese custom and usage of the term "brother".

6. On the facts and information that were before him, the Deputy Judge was entitled to draw the inference that the Applicant and the illegal immigrant were distant rather than close relatives.

7. The question whether close relationship between an illegal immigrant and the person who assisted him to remain is relevant to sentence was the subject of consideration in a number of decisions. In R. v. Tse Chan-lit and Another Cr. App. No. 590 of 1978, Leonard J. (as he then was) set aside a prison sentence imposed on the appellant for aiding and abetting three illegal immigrants to remain in Hong Kong because one of the illegal immigrants was his "godson". Garcia J. in Leung Chun-chung v. R. Cr. App. No. 509 of 1980 substituted a prison sentence of 12 months with a fine of $5,000 because the appellant was the uncle of one of the illegal immigrants. In R. v. Cheung Wing-kwan Mag. App. No. 638 of 1984, the appellant was sentenced to 9 months' imprisonment by a magistrate and on appeal Bewley J. ordered the immediate release of the appellant who had by the time completed two months of his sentence. One of the illegal immigrants was the appellant's 21 years old niece and the other, her clansman. R. v. Wong Kwai [1989] 2 HKLR 59 was an appeal against sentence from a magistrate which came before Hooper J. The appellant in that case was a factory owner who employed three illegal immigrants to work in his factory. The magistrate imposed a sentence of 9 months imprisonment. The applicant was 66 years of age and a man of relatively good character and he pleaded guilty at the first opportunity. It was contended on appeal that the magistrate failed to take into account that one of the illegal immigrants was the nephew of the appellant and two were his clansmen. Hooper J., after reviewing a number of authorities, held, as summarised in the headnote to the report that:

"The fact that illegal immigrants assisted were related to the accused was relevant to the question of sentencing. ... In deciding the reduction to be allowed in such a case, the closeness of the relationship was of importance. A relative through marriage who was not distant should suffice. The term "clansman" was too wide and covered too large a number of people to be normally relied upon as a mitigating factor. ..."

It is clear from these decisions that recognition is given to close relationship as a mitigating factor.

8. This Court was called upon to decide the appropriate sentence for persons convicted of aiding and abetting illegal immigrants in R. v. Law Chuen-fook [1989] 1 HKLR 164. The appellant was the responsible person in charge of a lighter which was based on the Yaumati Typhoon Shelter. He employed the illegal immigrants to work on board the lighter as casual workers. At the time that he engaged them, he did not ask for their identity papers, but on the fifth day of the month they admitted to him that they were in fact illegal immigrants from China and did not have any identity cards. The appellant continued to employ them until the time that all were arrested. They pleaded guilty before a magistrate and each was sentenced to twelve months' imprisonment. The appeal against sentence came before Hopkinson J. who reserved the matter for the consideration of this Court pursuant to s.118(1)(d) of the Magistrates Ordinance, Cap. 227. The appeal was dismissed. In delivering the judgment of the Court, Cons V.-P. had this to say:

9. Although the facts in Law Chuen-look are different, the principles there are applicable to all cases involving persons who assist illegal immigrants to remain in Hong Kong.

10. But, while we agree that it is inappropriate to lay down any particular period or periods of imprisonment for this offence as each case must be considered on its own facts which vary from case to case, we would go a little further. In our view, it would be useful for the sentencer to take the following factors into account when deciding the proper sentence to be passed for aiding, abetting or assisting illegal immigrants to remain:

11. The Applicant was charged under s.37DA(1) for assisting an unauthorized entrant to remain in Hong Kong and not for the offence of aiding and abetting the remaining in Hong Kong of a person who had landed unlawfully, contrary to s.38(1)(b) of the Immigration Ordinance. The offence under s.37DA is triable on indictment with a maximum sentence of 10 years' imprisonment and a fine whereas the maximum sentence of imprisonment under s.38(1)(b) is only three years. If these two offences in effect penalise exactly the same actions, but with penalties of such disparate severity, the continued retention of both must be wrong. One or other of them should be repealed. Moreover, it appears that they are randomly resorted to, and that cannot be right. That said, we see no alternative in this instance but to deal with the matter under the section the charge has been laid and by reference to the penalty it provides.

12. Having regard to the foregoing and the particular facts of this case, we come to the conclusion that the sentence of two and a half years imposed after a plea of guilty is manifestly excessive. The offence before us is plainly far from the upper extreme mentioned. We think that a starting point of 30 months would have been appropriate. Discounted by the usual one-third for the plea of guilty, that term would drop to 20 months, and allowing a small further discount for the distant relationship, which we think appropriate, would reduce the sentence to 18 months.

13. Accordingly, we grant leave. Treating the application for leave as the hearing of the appeal, we allow the appeal, set aside the sentence of 2½ years, and substitute a sentence of 18 months' imprisonment.