THE QUEEN v. SZE YUI

IN THE COURT OF APPEAL

1995, No.348
(Criminal)

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JUDGMENT

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Hon Yang, CJ:

1. This is the applicant’s for leave to appeal against his conviction on one charge of assisting the passage within Hong Kong of unauthorized entrants and another charge of endangering the safety of others at sea. He was the 2^nd defendant in the court below. The 1^st defendant was a boy of seventeen years of age called Mok King Ching.

2. In his homemade grounds of appeal, he said that he was not the snakehead, and that a police video tape could prove that fact. Before us today, he repeated what according to him was what had actually transpired.

3. The facts of the case might be briefly stated. At about 6:38 pm on 24 November 1994, officers of the marine police on board a police marine launch off Ping Chau in Mirs Bay saw a vessel which attracted their attention. The police monitored that vessel’s movements and eventually decided to intercept it. It was already dark when the police started to chase after the vessel when, according to the evidence, “that vessel appeared determined to avoid stopping for PV 57”, i.e. the police launch, and it was “making quite sudden and violent changes in direction and speed”.

4. There was at that time a strong wind and the wave was grade 3-4. Visibility was poor. When the police launch got near the vessel, very flares and parachute flares were shot into the sky and the police could see the applicant sitting in the boat with his left hand on the control level thereby controlling the boat’s speed and direction.

5. The police officers identified themselves and ordered the boat in front to stop. That instruction was ignored and the chase continued for another four to five minutes. It was noticed that the boat in front accelerated and changed directions violently, zigzagging away until it suddenly collided with the police launch. That boat sank and the occupants, i.e. seven women and five men, fell into the sea from which they were rescued by the police.

6. The identification evidence was considered carefully by the judge. In the forefront of her mind were the Turnbull guidelines. She noted that the police officer who identified the applicant said that the flares provided brilliant illumination and that he saw the applicant’s face in profile several times. On one occasion, the applicant turned around and he saw the applicant’s face for two seconds at a distance of some ten feet.

7. The police took two cautioned statements from the applicant which were challenged. The admissibility of those statements was tested during a voir dire hearing in which the applicant gave evidence. Having heard the evidence, the trial judge ruled that the statements were voluntary and admitted them into evidence.

8. In the statements, the applicant admitted that he was helping to steer the boat by holding the steering wheel. He said he was not the coxswain but an assistant to Mok King Ching.

9. We have read the learned judge’s Reasons for Verdict and come to the view that she has dealt with the evidence, particularly the evidence of identification, with care. There were ample grounds for her to admit the two cautioned statements.

10. In our judgment, there is nothing which has been said by the applicant either in his homemade grounds of appeal or in his submission to us this morning which leads us to doubt the correctness of the verdict. We find nothing of substance in this application, it is accordingly dismissed.