R. v. CHAN FUNG CHAI

IN THE COURT OF APPEAL

1992, No. 219
(Criminal)

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J U D G M E N T

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Penlington, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction and sentence in the District Court on a charge of assisting the passage to Hong Kong of unauthorized entrants.

2. A considerable amount of the background evidence was not in dispute. Two men, Fung Kwong Kiu and Leung Chiu Kwong, neither of whom had a right of abode in Hong Kong, were found on the 23rd February 1992 at the Mui Wo Pier on Lantau Island. They had bought ferry tickets and were waiting to board the vessel bound for Hong Kong Island. They were stopped and questioned by two police constables who suspected that they were illegal immigrants. Both Fung and Leung admitted that that was the case and could not produce any Hong Kong identification. They were arrested and as a result of what they said to the police the applicant was in turn arrested on board his motorized sampan at Tsin Yu Bay, Lantau Island. He admitted having brought Fung and Leung into Hong Kong but said that they had all come into Hong Kong waters to engage in oyster fishing operations and that Leung and Fung had simply gone ashore to do some shopping. He anticipated that they would come back to the sampan but they had not done so.

3. Leung and Fung gave evidence and said that they had formed the intention of coming to Hong Kong and that on the 22nd February they went to Shenzhen by bus. There they came across the defendant who was the owner of a small motorized fishing vessel. They said that they negotiated over a fee to take them to Hong Kong and agreed to pay RMB300 each. This they handed over to the defendant who in turn gave the money to another person. It is the payment of this money which is very much disputed by the applicant and it is agreed that only RMB92 was found on him and that when Leung and Fung gave statements to the police they said nothing about the money being handed to another person.

4. Apparently the weather conditions were not good when they came to Hong Kong and that on the way they were intercepted by a Royal Hong Kong Marine Police launch. They were however allowed to proceed. They eventually landed at Tai O and having had a meal made their way to Mui Wo where they purchased the ferry tickets to go to Hong Kong Island.

5. The applicant gave evidence and said that he had known Leung since April 1991 but had only met Fung recently. He said that they had agreed to engage in oyster farming in Ping Hoi which is in the northeast of Hong Kong and that he had a permit from the Hong Kong Government to do so. They had set off from China at about 3 p.m. on the 22nd February in bad weather conditions. Because of that they went into the lee of Castle Peak to shelter before setting off again in the early hours of the 23rd February when they met the Marine Police vessel and were directed towards Tai O. Once they reached there Fung and Leung left the vessel intending to do some shopping. They did not however return and the applicant was subsequently arrested. He agreed that he realized that Leung and Fung had no right to land in Hong Kong.

6. The district judge said that he accepted the evidence given by both Leung and Fung and he disbelieved what was said to him by the applicant. He was satisfied that the money had been paid by Leung and Fung to the applicant and he found them to be reliable witnesses. He rejected the evidence given to him by the applicant although he did take into account the fact that it was strange that once Leung and Fung had reached Hong Kong and departed the applicant, if he did not expect them to come back, would remain in the area, as he undoubtedly did.

7. Before us the applicant said that he had waited for some five hours for Fung and Leung to return and if he knew that they were illegal immigrants intending to remain in Hong Kong that was inexplicable. He also pointed out that when Leung gave evidence he failed to identify the applicant, who on all the evidence he must have recognised, and said that the person who brought them to Hong Kong was not in court. The applicant said this was due to Leung's conscience troubling him. He denied receiving money from Fung or Leung and only RMB92 was found on him. He said that on the 23rd February the sea was very rough and his boat was only a small vessel and that they came into Hong Kong waters to shelter. Mr. Saw, for the Crown, very fairly informed us that neither Fung or Leung had mentioned that the money, having been paid to the applicant, was then given to another person when they made their statements to the police.

8. What has troubled us about this matter is whether the district judge should have treated both Fung and Leung as accomplices to this crime and considered their evidence accordingly. The classic definition of accomplice is as set out in Davis v. DPP [1954] AC 378 by Lord Simmonds. It includes persons who are particeps criminis in respect of the actual crime charge, whether as principals or accessories.

9. The courts have been unwilling to extend the definition and in some instances have refused to include certain categories of witnesses within it. It has been held that, for instance, the patron of an illegal vice establishment should not be considered an accomplice when giving evidence against the persons running such an establishment. We think, however, that here Fung and Leung were accomplices and their evidence should have been looked at with considerable suspicion. This is, in particular, as regards their evidence that they had paid the applicant the RMB300 each which of course would mean he knew they would not return to the sampan. If indeed they were intending to remain in Hong Kong and had not come just for a short visit the action of the applicant in remaining for some five hours after they had departed does indeed appear to be extraordinary. The district judge did reject the applicant's evidence and clearly his reasons for bringing Fung and Leung to Hong Kong in a small boat in bad weather are very suspicious. Nevertheless we are left with a doubt as to whether Fung and Leung's evidence on the payment of the money was such that the judge should have been satisfied beyond doubt that it was true. Having said that, however, it is quite clear that the applicant was fully aware that neither Fung or Leung were legally entitled to land in Hong Kong. Even if he did not anticipate that they would remain in Hong Kong, on his own evidence, he committed the offence charged. The question, however, of whether the applicant thought Fung and Leung were only going ashore for a short time and would return would be highly relevant to the question of sentence.

10. The application for leave to appeal against conviction must therefore be refused. As regard the application for leave to appeal against sentence we consider that the judge may have been in error in coming to the conclusion that the applicant had been paid the RMB300 by Leung and Fung and that he brought them to Hong Kong with the idea that they would remain here permanently. We therefore grant the application for leave to appeal against sentence which we set aside and substitute therefore a sentence which will permit the applicant to be released today.