R. v. HUNG MAN-FUNG

IN THE COURT OF APPEAL

1995, No. 349

(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court): This applicant was sentenced to 3 years and 2 months imprisonment by His Honour Judge Caird in the District Court on 4th May 1995, having pleaded to assisting the passage of unauthorised entrants contrary to s.37D(1)(a) of the Immigration Ordinance, Cap.115, an offence which carries a maximum imprisonment of 14 years. He applies for leave to appeal against sentence.

The facts

2. That offence took place on 14th January 1995. He and an co-accused, who was the helmsman, brought into Hong Kong people, one man and seven pregnant women on an unlit craft which was seaworthy but was not properly equipped for a sea voyage. His co-accused was older and was the helmsman and obviously had greater responsibility. He pleaded guilty at an early stage and received a much heavier sentence - 5 years and 6 months.

At trial

3. The mitigation after a plea of guilt was considered carefully by the judge. The applicant advanced, as he does before this Court, the difficulties he faced with getting employment in China, the difficulties in relation to his family circumstances, and his anxiety for money to his family. He admitted the offence early and made voluntary statement to that effect.

The sentence

4. The judge considered all the necessary matters including the fact that he had spent some time in custody which would not count towards his sentence and took as his starting point 4 years imprisonment and reduced the sentence in the light of his plea. Although the discount which he was allowed was rather less than might have been allowed, this was well within the discretion of the judge. The sentence was justified by the circumstances of the case. It was neither manifestly excessive nor was it wrong in principle. The application is refused.