R. v. YEUNG SHUI KAM and Another

IN THE COURT OF APPEAL

1996, No. 598
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. These two applicants, both men in their early 40's, were convicted after trial before Her Honour Judge H C Wong in the District Court on October 8 last year of being members of the crew of a ship which had entered Hong Kong with unauthorised entrants on board, contrary to s. 37C(1)(a) of the Immigration Ordinance, Cap. 115.

2. On the following day, the judge sentenced each of them to 4½ years' imprisonment.

3. They now seek leave to appeal against conviction and sentence.

4. On July 21 last year, just off Aberdeen Typhoon Shelter, Customs and Excise officers boarded a 60 ft twin engine fishing vessel and found two crewmen on board, being these two applicants. It is not suggested that either of them owned the vessel.

5. Prising open the deck in the kitchen, the officers found a secret compartment. Inside were eight unauthorised entrants from China: being five women, two men and one boy.

6. The police produced signed statements from each applicant admitting knowledge of the secret compartment and of the eight unauthorised entrants hidden inside.

7. When giving evidence, each applicant denied such knowledge and said that he did not know what was in his signed police statement.

8. The judge who heard and saw all the witnesses was satisfied that each applicant knew what he was signing and that his admission was true.

9. In addressing us, the 1st applicant made the following points.

He was only an employee. He did not own the vessel. It was owned by a Mr Cheng Kau, a Hong Kong man. He was not qualified to steer the vessel to Hong Kong. He did not take the unauthorised entrants to the vessel. He did not know any of them. None of them came along to say that they knew him or that he knew them.

10. All of that is true but not relevant. The prosecution's case was simply that he was a member of the crew knowing that there was a secret compartment and unauthorised entrants inside.

11. The 2nd applicant said that his trial was not fair and that the judge was biased. There is no foundation for any of that. He also said that his confession statement was not sufficient to convict. That is not so. Finally, he said that he was cross-examined on his previous conviction in Hong Kong. He was indeed so cross-examined. He was so cross-examined because he had made it relevant by saying that he had never been in a Hong Kong court in his life before.

12. Leave to appeal against conviction must be refused to each of these men; and we turn now to the question of sentence.

13. Neither of these men was the mastermind behind this operation. The judge knew that. Each applicant asserts very difficult family circumstances and asks for leniency. In particular, the 1st applicant has pointed to material showing that his mother is in a very serious condition. The problem is this. No matter how small the role of each of these men, this is a very serious offence. Clandestine sea voyages are always dangerous. And when people are sealed in a secret compartments that danger is very, very great indeed.

14. The judge was entitled to pass the sentences which she passed; and leave to appeal against sentence is also refused.