THE QUEEN v. YU MAN-WAI

IN THE COURT OF APPEAL

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JUDGMENT

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Power, V.-P. (giving the judgment of the Court):

1. In this matter the applicant faced two charges, one of assisting the passage within Hong Kong of unauthorized entrants and the other of reckless driving. The facts as set out by Judge Beeson in her Reasons for Sentence was as follows.

2. The applicant was the driver of a lorry carrying 11 female unauthorized entrants, 10 of whom were pregnant. He approached the Shek Chung Au Checkpoint from the direction of Sha Tau Kok Estate. As he drove towards the checkpoint he was asked by the police to stop. He did slow down but then drove onward at speed to avoid the police check. The police pursued him. On reaching the junction with Ha Wo Hang Village Road he made a sharp left turn and lost control of the vehicle. It crashed against some railings and fell into a 2 metre ditch. He managed to climb out and run away but was eventually caught. The female passengers were sent to hospital and four were admitted for observation. The applicant admitted receiving $3,000 to convey the pregnant unauthorized entrants to Fanling.

3. The applicant pleaded guilty before Judge Beeson and was sentenced to three years and two months on the charge of assisting the passage of unauthorized entrants and to six months on the charge of reckless driving. Those sentences were ordered to be consecutive making a total of 44 months. He now seeks leave to appeal against sentence.

4. The applicant has been represented before us today by Miss Remedios who has argued seven grounds of appeal. The first ground was that the judge had erred in taking into account that "it must have been part of your instructions to try and outrun the police checkpoint in this manner if, you were stopped." We are satisfied that that specific inference was not justified but we have no doubt that it must have been the intention both of the applicant and of those who were behind him that he do his best to evade apprehension if approached by the authorities. We do not think there is any real materiality in this ground.

5. It is then argued, also as part of the first ground, that the judge was wrong to equate the facts of the present case with the sometimes dangerous situation which occurs when offenders are engaged in bringing unauthorized entrants into Hong Kong by boat. The parallel is not an exact one but we are satisfied that in the present case there were marked similarities. The applicant was in charge of the vehicle, it contained unauthorized entrants and he clearly put them at risk when he acted as he did in an endeavour to evade apprehension. It was a dangerous manoeuver which could properly be compared to that of a helmsman manoeuvring without proper care to avoid capture. We see no real ground for criticising the comparison made by the judge. We find nothing of materiality in this point.

6. The second ground urged was that the judge wrongly rejected mitigation that the applicant had no prior knowledge that the women were pregnant. This, ground was, it must be said, not pressed by Miss Remedios but we think it appropriate to make the following comment thereon. In the admitted facts the applicant acknowledged that he was aware that he was carrying pregnant women. These facts were binding.

7. However it seems that counsel for the applicant, when putting mitigation before the judge, made a statement suggesting that the applicant was not aware that he was conveying pregnant women. The judge dealt with this saying:

"Despite suggestions to the contrary in mitigation you admitted the Summary of Facts which stated clearly that you knew that several women were pregnant, even if you may have been in doubt about the number of passengers you actually carried."

8. She went on to sentence upon the basis that he had admitted knowing that he was carrying pregnant women. Given the submission of counsel, the desired course would have been to ask him, before proceeding to sentence, whether he was seeking leave to withdraw the admission of knowledge on the part of the applicant and to have then, depending upon his answer, dealt with the matter as appropriate. This matter need not, however, concern us further since, as we indicated to counsel in the course of argument, the applicant must have been aware that he was carrying a number of passengers and the seriousness of the offence lay in his acting in a way which had no regard for their safety.

9. We turn to Ground 3 in which it is submitted that the judge erred in adopting a starting point five years in respect of the offence of assisting the passage of unlawful entrants as this is the appropriate starting point for offences involving an inherent risk where the entrants are being brought into Hong Kong by sea. It is correct that 5 years is the starting point for such offence but, as we have already indicated, we find little distinction can be drawn between the seriousness of the present offence and one where the carriage is by sea. We say this taking into account the whole of the circumstances including the manner in which the applicant behaved after having being signaled by the police.

10. There has been considerable argument addressed to us to suggest that in recent years sentencing policy has, to an extent, been watered down because offences of this kind are not as prevalent today as they were in the past. It is argued that this is appropriate not only because such offences are less prevalent but also because in 1993 the legislature changed the maximum sentence for this offence from one of life to one of 14 years. The fact of the matter is, however, that sentencing policy has, and in our view properly, remained consistent since the early 90's. We are not persuaded that there should be any change in sentencing policy even though it may be that the offence is less prevalent. A starting point of five years in the circumstances of the present case was, we are satisfied, clearly correct.

11. In Ground 4 complaint is made of the fact that the Crown adduced evidence that the applicant had been bound over to be of good behaviour. We do no more than comment that this should not have been done. While no mention should have been made of the binding over we do not consider that the mention which was made had any effect on the judge when sentencing.

12. In Grounds 5 and 6 it is suggested that the effect of what the judge did when equating carriage by sea with its inherent risks with carriage by land was to take into account the reckless driving when fixing the starting point on the first charge and that she therefore erred when ordering that the sentences be consecutive. If this was done then, of course, it was wrong. We note the force of the arguments raised by Miss Remedios in this regard but at the end of the day what we have to look at is the totality of the sentence - 44 months. Before interfering we must be satisfied that this totality was wrong. The applicant had carriage of a number of illegal immigrants and, as it turns out, all except for one were pregnant. They were placed in a position of very considerable danger. The applicant was a driver with only three months' experience. The vehicle overturned and fell into a ditch 2 metres deep. That no persons were seriously injured is almost miraculous. It may be that he panicked, as Miss Remedios suggests, but he panicked in an endeavour to await apprehension when what he could and should have done was to have stopped his vehicle and surrendered. We are satisfied that the overall sentence of 44 months was not a manifestly excessive one and that there is no grounds on which we could properly interfere therewith.

13. The application for leave to appeal against sentence must, therefore, be refused.