WONG WING TO and Another v. R.

IN THE COURT OF APPEAL

1993, No. 312
(Criminal)

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J U D G M E N T

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Nazareth, J.A.:

1. The two applicants were convicted by His Honour Judge Burrell in the District Court of being members of the crew of a ship which entered Hong Kong with unauthorised entrants on board. They were each sentenced to five years imprisonment and now seek leave to appeal against conviction and sentence.

2. The facts are as follows. On 7th march 1993 about 8.30 p.m. Police Launch 52 with three officers on board was engaged on an anti illegal immigrant operation. It was about half a mile off the beach at Siu Lan Shui. PW1, a police officer, on board the police launch using a thermal imager saw a vessel, which he was able to recognise as a jumbo P4 sampan, approach the beach and disembark about 15 persons. Two persons remained on board and the vessel then set off to sea again. The officer notified his support vessel by radio and he then saw on the imager screen what appeared to be a police vessel pursue the sampan and intercept it.

3. The two applicants were arrested on their sampan by two marine police officers.

4. In evidence both applicants said that they had come from China to collect a consignment of pagers. They had never approached the beach, had never had anyone on board and had not been chased by the police.

5. In convicting the applicants the judge made the following findings of fact :

"(1) PW1 was able to see and did in fact see what he told the court he saw on his thermal imager screen. A sampan delivered 15 people to the shore.

(2) The same sampan was the one he saw intercepted by a police vessel minutes later. There were no other similar vessels in the area at the time.

(3) The interception witnessed by PW1 on the screen was the interception in fact made by PW2 and PW3 (two police officers on the vessel)."

6. The applicants in their very similar though not quite identical notices of application for leave to appeal against conviction complained about a number of matters. Before us today they have added to these by means of three written documents. I will now deal with the points made both in their notices of appeal and the documents handed up.

7. First, they complained that no illegal immigrants have been arrested, nor have any been produced to say they came on the applicants' vessel. The answer to that is that the judge was nonetheless clearly entitled to make the findings he did if he accepted the other evidence to which I shall come.

8. Second, the applicant's say that the vessel on the imager screen simply resembled theirs, implying that it was not. They developed that ground before us today by complaining that no expert evidence was produced about thermal imagers. They criticised the evidence given in a way that is familiar in the context of radar road traffic speed evidence. However, we do not accept the analogy. PW1 gave evidence that he saw on the screen what he was able to recognise as a sampan; the judge was entitled to accept that evidence and he did accept it.

9. Third, the applicants refer to s.37K(1) of the Immigration Ordinance which provides a presumption. The judge dealt with this matter in the following way at p.5 of his reasons for verdict:

"I accept that PW1's estimate of 'about 15' people is a reasonable estimate of what he saw. The prosecution allege these people are unauthorised entrants. By s.37(K)(1) Cap. 115 they are presumed to be in the absence of any evidence to the contrary. There is no evidence to the contrary and I find them to be unauthorised entrants. Regardless of s.37(K)(1) this court would be sure, in the context of this case, that they were illegal immigrants."

The applicants criticised the latter part of the foregoing passage. However, the judge was entitled to point to the presumption and indicate that it could be relied upon, and in addition to go on and hold that regardless of that provision he was in any case satisfied-that they were illegal immigrants. In the particular circumstances that existed the latter conclusion would seem to be the natural one. We would therefore reject the applicants' complaint pertaining to s.37K(1).

10. Finally, the applicants complained about the evidence of what took place at the scene. They said the two marine police officers, PW2 and PW3, concealed the fact that a helicopter was present overhead with its floodlight on. We cannot see how that affects the matter. They also asked why the police would be satisfied by catching only them and not the 15 unauthorised entrants. This, also, we do not think affects the judge's finding.

11. For those reasons we find no substance in their grounds of appeal against conviction and refuse leave to appeal against conviction.

Silke, V-P:

Sentence

12. The applicants seek leave to apply out of time against their sentence of five years imprisonment.

13. They have given no good reason why that indulgence should be granted them. We have considered the quantum of the sentence lest, by refusing leave, it might occasion a miscarriage of justice.

14. In the circumstances here the sentences were by no means excessive.

15. The applications for leave out of time are refused.