HKSAR v. HO KOON HUNG AND ANOTHER

CACC 86/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 86 OF 2008

(ON APPEAL FROM HCCC NO. 264 of  2007)

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REASONS FOR JUDGMENT

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Hon Wright  J (giving the reasons for judgment of the Court):

1.  The appellants, who were the 3^rd and 4^th accused respectively, had been granted leave to appeal the sentences imposed on them by Deputy High Court Judge Longley consequent upon their pleas of guilty and after a Newton enquiry had been held. On 12 February 2009 we allowed the appeal and indicated that we provide reasons for our decision, which we now do.

2.  The appellants were charged with two counts, both contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115.  The particulars of the first count alleged that, on 16 May 2007, they, together with three other persons charged with them, cited as 1^st, 2^nd  and 4^th accused respectively, and one Chow Kam-hung, had assisted the passage to and within Hong Kong of seven named unauthorised entrants whilst those of the second count alleged that on the same day they and the 4^th accused had assisted the passage within Hong Kong of another, named, unauthorised entrant.

3.  In a subsequent trial, HCCC 263/2007, the 1^st and 2^nd accused gave evidence against Chow Kam-hung who was charged with one count of having conspired with them to assist the passage within Hong Kong of unauthorised entrants: Chow Kam-hung was also charged with the two charges faced by the appellants.

4.  In sentencing the appellants, the judge outlined the evidence, as revealed by the summary of facts agreed by them for the purposes of their pleas and the Newton enquiry, in the following terms:

"Both offences occurred at night in the early hours of 16 May... Count 1 is a charge of assisting the passage to and within Hong Kong of the seven female unauthorised entrants referred to in that charge.

That charge relates to the sea journey you made from Panyu in a wooden motorised vessel, bringing the women into Hong Kong waters and then landing them on the beach in Hong Kong.  Arrangements had been made by others to transport them from there by vehicle, into the urban area where they intended to work as prostitutes.

The 2nd count relates to the voyage on which you embarked immediately after you had dropped off the seven women on the Hong Kong beach.  It is a charge of assisting the passage within Hong Kong of the unauthorised female entrant referred to in that charge.

Six individuals had been hiding in the bushes at the time your vessel arrived at the beach.  Three Indonesian men, two Indonesian women and the mainland woman who was the unauthorised entrant referred to in charge.  They emerged from the bushes and boarded your vessel which set off from the shore.

The vessel was intercepted by a small craft belonging to the marine police off Lung Kwu Tang South, while still in Hong Kong waters but heading out of those waters.  At that time you  [2^nd applicant] were steering the vessel, with you, [1^st applicant], beside him.  [The fourth accused] was standing in front of [you].

The vessel was then brought alongside a larger police vessel and searched.  The officer conducting that search...SPC323… searched the vessel starting from the bow.  Behind the engine compartment of the vessel was another compartment which appeared to be covered by plywood decking.  SPC323 was not able to see any entrance to this compartment and, as far as he could ascertain, the plywood cover was fixed down.  He therefore inserted his hands into a gap in the plywood and forced an opening, whereupon he discovered the five Indonesians and the mainland woman in the hold below.

It is not disputed that most of the plywood which covered this compartment, which ran from one side of the vessel to the other, was nailed down.  However, it does now appear from the evidence I heard in the Newton enquiry, that one of the plywood boards, which measured 25" x 21", was, unknown to SPC323, not nailed down and could be raised or opened by those in the hold below."

5.  The judge accepted that the person in Panyu who had motivated the voyage, to whom the appellants referred as “Ah Keung”, had recruited the appellants to undertake the journey to Hong Kong for a small financial reward.  The judge further appears to have accepted that the appellants were in contact with Ah Keung by mobile telephone and responding to his instructions.

6.  In interviews with the police the appellants said that the 1^st appellant had agreed to navigate the vessel when it was outside Hong Kong territorial waters whilst the 2^nd appellant had agreed to navigate it within such waters. The judge said:

"... I do not propose to distinguish between [the applicants] in terms of your roles.  You admitted taking it in turn to navigate the vessel.  In that role, you were jointly responsible for the safety of the passengers on the vessel.  You were jointly in charge of the vessel.  It is no answer to suggest that because you could receive instructions from Ah Keung by mobile phone, he, and not you, were in charge of the vessel."

7.  It is this approach that underlay the first ground of appeal which asserted that the starting point for the sentences passed in respect of the individual counts was "too high".  Immediately after saying that he did not propose to distinguish their roles, the judge indicated that the appropriate initial starting point in respect of each offence was one of five years imprisonment.  The submission was that the judge erred in finding that the two appellants were jointly in charge of the vessel when he should have found that they were simply crew members: consequently, upon the authority of  R v WONG Ying-lung [1995] 1 HKCLR 151, the starting point should have been four years imprisonment.

8.  We did not accept that submission.  It was suggested that they cannot jointly have been the "captain" of the vessel and that neither of them, individually, held that specific role.  With respect, such semantic niceties ignored the reality of the situation. The judge obviously accepted that the two appellants had been specifically recruited by Ah Keung to undertake the two-way journey, sharing between them the duties of pilotage and navigation from the Mainland to Hong Kong and back again. For whatever reasons, which of them would steer the vessel at any particular stage of the voyage was discussed.  The judge was quite right when he said that they were jointly responsible for the safety of the passengers on and jointly "in charge" of the vessel. 

9.  The judge's finding was practical and accordance with plain commonsense.  It was simply unrealistic to expect one of two persons, both paid to be in charge of the vessel, to be designated "captain" when making the comparatively short journey down the estuary from Panyu.

10.  His approach was, moreover, consistent with that in WONG Ying-lung in which the court said at 153:

"In R v NG Kit-yuen [1992] 1 HKCLR 170, the court dealing with the person who had been particularised as the captain of the vessel was satisfied that five years after trial was the appropriate starting point and indicated that concealment which endangered the passengers and seaworthiness of the vessel would each increase the starting point by two years.

The five year starting point and the accretions for aggravating circumstances have application to the captain or person in charge of a vessel.  If the persons employed on a vessel are charged with being "members of the crew" but the facts reveal that one is the person in charge, that being admitted, the starting point is appropriate to him as are the accretions if applicable.  The starting point will apply also to crew members and others who have taken an active part in the organisation of the venture but the accretions will not unless it be shown that they were in some way actively involved in the circumstances of aggravation.  Defendants not infrequently suggest to the court that they are not crew members and on board only for the purpose of collecting money for the real snake head.  Again for such persons five years is the appropriate starting point.

Four years is the appropriate starting point for a person who can be described as a crew member simpliciter, i.e. a person who has taken no part in the organisation of the illicit venture and is simply assisting in the operation of the vessel pursuant to the orders of the captain or person in charge. ( See R v CHAN Kwok-keung and Another  [1988] 1 HKLR 279) We think it appropriate to add that these figures are guidelines and to not impose a straitjacket upon the sentencing judge.  The facts of a particular case may call for a sentence that falls below or above the guideline e.g. in the case where the vessel is carrying a large number of illegal entrants.” [emphasis supplied]

11.  It was also submitted that a disparity existed between the sentences imposed on the 4^th accused and the appellants. There was a difference in their sentences which was because, on the material before him, the judge could only be satisfied that the 4^th accused was a crew member. Conversely he found that the appellants were jointly in charge of the vessel. The judge correctly drew the distinction and recognized it when passing sentence.

12.  The starting points fixed by the judge respect of the individual counts were correct.

13.  The second ground of appeal was that the judge erred in increasing the sentence to take into account "aggravating circumstances".  What the judge said was this:

"That starting point in each case should be increased by 18 months to take into account the danger to the passengers arising from the manner in which they were concealed, the poor condition of the vessel, and the lack of navigation lights and life-saving equipment."

14.  From the description of the vessel in the agreed facts as well as the photographs made available to us on behalf of the appellants it is self-evident that this was a reasonably substantial vessel.  It measured 14.48 m in length with a beam of 2.95 m.  Although the assertion is made that "the main hull structure was in poor condition" no further information is provided.  It was, of course, a cargo vessel which, by its very nature, was not designed to carry passengers.

15.  We note that the summary of facts contains also the assertion that "It was concluded that the vessel was not appropriately equipped for navigating at sea": it is clear that that was because of the lack of safety equipment and lighting, not because it was suggested that the vessel itself was in such a poor a condition that it was unseaworthy.

16.  To describe the compartment in which the illegal entrants were concealed as a "cabin" was a misnomer.  As can be seen from the photographs, the main portion of the vessel as well as an area immediately behind where the engine is located is open, with decking at, approximately, water line level.  The area behind the engine was covered by a number of planks all except one of which were nailed down.  The judge recognized that the remaining plank was easily removable.  The judge also recognized the difficulty that those hiding in this compartment would have experienced, in the event of an emergency, in escaping from it through the space left by the one removable plank.  We accepted that this was not an situation where the illegal entrants stood no chance at all of escape from an entirely sealed compartment, but they clearly were exposed to a substantially increased risk to their safety by the conditions in which they were being carried.

17.  We accepted, too, as Mr Whitehouse submitted, that escape from small vessels is likely always to be difficult in case of emergency: that difficulty was exacerbated on this vessel by deliberately restricting further the physical opportunity for escape.

18.  In R v NG Kit-yuen [1992] 1 HKCLR 170, it was suggested that the five year starting point for a person in charge of vessel could properly be increased by two years where escape from the place where illegal entrants were concealed "would have been difficult" and by a further two years where the vessel was in an unseaworthy condition as a result of poor maintenance.  That decision has been consistently followed. In HKSAR v WONG Chi-kin CACC357/2004 the court summarised the approach to sentencing in the following manner:

“The generally applicable tariff is 4 years’ imprisonment: R v Ho Siu-lun and Ors [1987] HKLR 1086, R v Chan Kwok-keung and Anor [1988] 1 HKLR 279 and R v Lam Kon-man, Crim App No. 329/1990.  Where the accused was the captain of the vessel or the person in charge or assisting in the operation of the organisation of the venture, the appropriate starting point is 5 years’ imprisonment: R v Wong Yin-lung [1995] 1 HKCLR 151 at 153 and R v Pang Wing [1996] 1 HKC 624 at 626H and 627A.  The following situations will be considered as aggravating factors increasing the sentence from the 5 years starting point in respect of the person in charge of the vessel or of one who was in some way actively involved in the circumstances of the aggravation:

(a)    The unauthorised entrants or illegal immigrants were concealed in a place in the vessel from which escape would have been difficult: R v Ng Kit-yuen [1992] 1 HKCLR 170, at pp 173-174.

(b)   The vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering the passengers: also see Ng kit-yuen, at p 174, and HKSAR v Tsui Kwong Ming, CACC 247/2004, 14 December 2004.

(c)    The vessel was carrying a large number of illegal entrants: Wong Yin-lung, at p 153, line 34.

(d)   Where the vessel was grossly overloaded, creating a gravely hazardous operation: R v Chan Shing Chun, Crim App No 390 of 1995, 9 November 1995.

(e)    The degree of danger that might be involved caused by the age and physical condition of the unauthorised entrants, as greater risk in the event of a mishap might more easily risk the life of the very young, very old and the infirm: R v Lo Shui Lun, Crim App No 109 of 1995, 17 August 1995 and Tsui Kwong Ming.”

19.  In our judgment the judge was correct to recognize an increased risk to the illegal entrants.  It was suggested that the voyage was not of substantial duration: that may be so but that limits only the period for which the illegal entrants were exposed to danger, not the nature or extent of the danger. An enhancement of 18 months imprisonment, at least, for the risk factor was fully justified.  That resulted in an aggregate sentence, before mitigation, of 6 years 6 months imprisonment in respect of each charge.

20.  The third ground of appeal was that the judge was wrong to pass a consecutive sentence, even in part, in respect of the two counts, the argument being that this was a part and parcel of a single venture.  It was submitted further that in the proceedings under HCCC263/2007, to which we have already referred, the action which flowed from, amongst other things, the same events and which was tried by the same judge, the sentences imposed on Chow Kam-hung in respect of the offences of which the present appellants had been convicted were ordered to run concurrently with one another and not consecutively even in part.

21.  It is to be noted that there was no suggestion that Chow Kam-hung was physically present on the vessel at any stage: his role appears to have been that of providing transportation for the illegal entrants once they had arrived in Hong Kong or prior to their departure.  The judge recognized that there was no evidence that Chow Kam-hung knew of the conditions on the vessel. Although, therefore, the acts of Chow Kam-hung and the two appellants were different, so interwoven were the events that we were of the view that the appellants would have a justifiable sense of grievance had the order made by the judge been allowed to stand.

22.  The final ground of appeal was that the sentence, in totality, was too severe.  The judge approached the issue of totality in this manner:

"A starting point of 6½  years imprisonment is therefore appropriate in respect of each charge, and an overall starting point of 7½  years imprisonment in respect of both charges."

23.  That approach was wrong in principle.  The judge first should have passed the appropriate sentence in respect of each of the two counts and then considered the issue of totality.

24.  The judge allowed a full one third discount for the appellants’ pleas of guilty: although a Newton enquiry had been held, it had been resolved substantially in favour of the appellants.  There were no further mitigating features.  Consequently, the appropriate sentence in respect of each charge was one of 4 years and 4 months imprisonment.  Although we do not regard the overall sentence of 5 years imprisonment as being manifestly excessive, for the reasons appearing in paras. 20 and 21 above, the sentences should have been ordered to be served concurrently with one another.

25.  In the circumstances we ordered that the sentences on counts 1 and 2 were to be served concurrently with one another resulting, in an aggregate sentence of 4 years and 4 months imprisonment.  To that extent the appeal succeeded.