R. v. NG KWAN YIU

IN THE COURT OF APPEAL

1996, No. 551

(Criminal)

________________

________________

________________

J U D G M E N T

________________

Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced two counts: one of being a member of the crew of a ship which entered Hong Kong with unauthorized entrants and the other of endangering the safety of others at sea. In the first it was alleged that he was a member of the crew of a ship which entered Hong Kong on 2nd May 1996 with eight unauthorized entrants and, in the second, it was particularized that, when that ship was 2½ miles off Bluff Head, he, without reasonable excuse, endangered the safety of others and that he steered the sampan in a dangerous manner and abandoned it while underway.

2. The facts are familiar ones. A police patrol boat saw a suspicious sampan travelling in the vicinity of Bluff Head. An indication was given to the vessel to stop which it failed to do. When the police launch approached the helmsman, who is the present applicant, did not slow down but steered the sampan in a way which caused it to collide with the police vessel and abandoned it while it was underway. All of the passengers fell overboard but happily all, including the applicant, were rescued from the water by the police.

3. The applicant, when interviewed by the police, at first said that he was a member of the crew but in his second statement he admitted that he had been steering the vessel. He, having been found guilty after trial before Judge Hawkes, now appeals against both conviction and sentence. He was sentenced to imprisonment for 6 years on the first charge and to 12 months concurrent on the second charge.

4. Judge Hawkes said in his judgment:

"When the accused was rescued and helped on board the police vessel, one of the two injured persons still on board the police vessel had indicated that it was the accused who had been steering the sampan.................... Several of the rescued persons who were on board P.L. 4 had indicated the accused was the helmsman of the sampan. The accused, however, made no response and, according to PW3, he was very calm. PW3 also took a cautioned statement from the accused. At the time, the accused made no response."

The trial judge went on, having reviewed the evidence, to state:

"When I consider all the evidence in this case and placing reliance upon admissions made by the accused in his third cautioned statement, exhibit P6. I am satisfied that the 1st charge has been proved against him beyond reasonable doubt.

For similar reasons, I am satisfied the 2nd charge has been proved against the accused beyond reasonable doubt."

5. The second cautioned statement read as follows:

"Q.8: Yesterday you said it was Chan Kwong-hong who steered the vessel and just now you said Chan Kwong-hing did not exist, actually who steered the speedboat to convey the group of people to Hong Kong:

A.8: Actually it was I who steered the vessel to convey the said group of people to Hong Kong.

Q.9: How did you arrange the said group of people to board your speedboat?

A.: The arrangement was made by Ah Luen. Sometime past 6 o'clock that evening, he steered a speedboat to my fish raft. He asked me to convey a group of people to Hong Kong later. He said he would give me Renminbi Y300 as reward."

This was the clearest of admissions implicating the applicant in the offence and, indeed, from his own mouth, admitting that he was the person in charge of the vessel.

6. The Perfected Grounds of Appeal were drawn by Mr. Lau but as Legal Aid was withdrawn the appeal has been argued by the applicant himself. The first ground of the Perfected Grounds was a submission that the learned judge had been wrong to make reference to and to rely upon police evidence that the applicant was identified as the helmsman by the other unauthorized entrants who were not called. It is true that the judge did make reference to that evidence but we are satisfied that he did not make any improper use of it. It was simply a recital of what had occurred. The evidence that was of real significance was the evidence in the cautioned statements where the applicant made admissions of guilt and it was upon this that the judge really relied when convicting. It is also a ground that the judge should not have relied upon the second cautioned statement as, it is suggested, that it is in conflict with evidence that came from one of the police officers. We find no weight at all in this ground. The judge was entitled to look at all the evidence and to rely upon the evidence which he considered most reliable. He clearly considered, as he was entitled to, that the cautioned contained a reliable account of what had occurred.

7. The applicant when addressing us has done no more than repeat that he was not involved in steering the vessel. He seems to be suggesting that he was not even involved as a crew member. The matters he raised were all matters of fact which were resolved, and properly, at the trial. There is nothing in the application for leave to appeal against conviction and it must be dismissed.

8. Mr. Lau when arguing the appeal against sentence admitted that there was no sufficient evidence to establish that he was the helmsman and that he should have been sentenced simply as a crew member and not as the person in charge. We do not agree. There was clear evidence to establish that he was the helmsman. The judge followed the appropriate guidelines when sentencing and, indeed, the sentence was lighter than it well might have been.

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