THE QUEEN v. NG KIT YUEN

HEADNOTE

The court confirmed that the sentence of five years after trial was, as indicated in The Queen v. LAM Kon-man (Cr. App. No.329 of 1990), a proper one to impose on the captain of a vessel bringing unauthorized entrants into Hong Kong from China. Court went on to state that where unauthorized entrants were concealed in circumstances such that there was a grave risk to their lives, or the vessel was unseaworthy, a starting point of seven years would be appropriate, and that where both of these factors existed, a starting point of nine years would be appropriate.

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced a charge under s.37C(1) of the Immigration Ordinance Cap.115 that he being the captain of a ship entered Hong Kong with unauthorized entrants on board. The particulars of the charge were that on 9th November 1990 in Hong Kong he was the captain of a ship "Wai Loi 678" which entered Hong Kong with 13 unauthorized entrants on board. He pleaded guilty to that charge before Gall J. and was sentenced to imprisonment for six years. He now appeals against that sentence on the ground that the trial judge adopted a wrong starting point and failed to take all of the mitigating factors into consideration.

3. The admitted facts revealed that at 1.15 a.m. on 9th November 1990 Marine Police Officers intercepted the vessel "Wai Loi 678" as it was entering the western entrance to the Aberdeen Typhoon Shelter. The applicant, who was the captain, and 8 crew were found on board but an inspection showed that it was carrying no cargo. A careful search was then made and when the planking underneath a kitchen cupboard was removed 13 illegal immigrants were found concealed in a compartment. There were 4 adults and 9 children ranging from 1 to 14 years. The planking was found to have been firmly fixed in place and the base of the cupboard was nailed down over it. The applicant said that he had been acting at the behest of a Chinese snakehead and was to be rewarded with 300 RMB for each immigrant successfully landed.

4. The Crown called two witnesses, the first to give evidence as to the condition of the vessel and the second to give evidence as to the number of illegal immigrants entering Hong Kong by sea.

5. The first witness was Supt. Roger Tritton, the staff officer in charge of Navigation and Seamanship in the Royal Hong Kong Police. Supt. Tritton said that he had been two years in the police but that, prior thereto, he had been a Captain in the Royal Navy He said that he had inspected the "Wai Loi 678" on 28th February 1991, the day prior to his giving. evidence, but some three and a half months after the commission of the offence, and found it to be an old river trade wooden constructed vessel in the order of 150 tons displacement whose main cargo area was an open hold in the forward deck area. He said that her general condition was very poor and that as she stood at that time she had a consistent leak which required pumping daily to ensure that she remained afloat. He said that she was seaworthy in calm river conditions but not really suitable for deep sea voyages at all. He added that it was not unknown for vessels of this age and type to actually spring their planking whilst in custody and sink very quickly. He said that there was no indication that the planks immediately over the entrance hole were nailed down but that a shelf which was part of the kitchen cupboard which sat on the planking bore nail holes indicating that it had been nailed down at each end. He went on to say:

"I believe there were two hazards here, the first being the risk of danger to people in that compartment in the event of flooding,and I also believe that there would have been a danger to people contained in that compartment had there been an outbreak of fire above their heads. The accommodation area above their head does have cooking facilities. These are of an open fire type,and therefore there would have been, in my opinion, extreme difficulty in vacating that compartment in either case."

He stated that it was his view that younger children would not be able to get out of the hiding place without assistance.

6. The second witness called was Miss Tsang Yuk-ching, a Chief Immigration Officer who furnished the court with statistics which showed that in 1989 about 20% of illegal immigrants arrested in the border areas had come by way of either bay or sea whereas in 1990 about 30% of arrested persons had come by those routes. These figures were tendered to establish that the number coming by bay and sea was on the rise. However Mr. Duckett Q.C., who appeared with 9r. Lo for the Crown, very fairly informed the court that during 1991 there had been some drop off in the percentage coming by bay and sea.

7. The trial judge sentenced upon the basis that the vessel was not suitable for navigation on the open sea in rough weather and that persons confined in the hidden compartment would have been at serious risk in the event of flooding or fire. He accepted that the shelf had been nailed in place over the compartment and that the very small entrance when closed would effectively confine the occupants of the compartment and that exit therefrom by the 13 illegal immigrants would have been very difficult if not impossible in the event of an emergency. The trial judge also accepted that the number of illegal immigrants entering the territory by sea was increasing.

8. The judge added that he gave little weight to the plea of guilty as the accused was caught in the act and the evidence was overwhelming. He referred to The Queen v. Lam Kon Man (Cr.APP. No.329 of 1990) in which the sentence of a captain of a vessel was reduced from five years to four years after plea and in which Sir Derek Cons stated:

".... we feel that the starting point of six years taken by the judge below was out of line with the general run."

He said that he was satisfied that that case was, on its facts, distinguishable from the present case as there was no concealed compartment on the vessel and the illegal immigrant on it were not shown to be at any particular risk. He was satisfied that by reason of its facts this case fell outside the ambit of those which set a tariff on a plea of guilty at four years. He considered that the starting point should be seven years and, taking into account the plea and the age of the applicant, was satisfied that six years was the proper sentence.

9. Mr. Plowman, who appears for the applicant before this court, submitted firstly that the judge was wrong to have been guided by the evidence of Supt. Tritton as to the condition of the vessel as the inspection by the. Superintendent was carried out more. than three and a half, months after the commission of the offence. He submitted that there, should have been evidence of the condition of the vessel as at the date of  the offence. We have had the benefit of seein g photographs of the vessel and have considered the evidence of Supt. Tritton in the light of those photograpns. We have no doubt that the vessel must have been in a condition very simlar to that descrbed by the superintendent at the time of the commission of the offence.While it may be that it was not consistently leaking at that time, its overall condition must, as the superintendent said, have been very poor. The judge was, we are satisfied, right to act upon his evidence and in particular upon the evidence that the vessel was "seaworthy in calm river conditions and not really suitable for deep sea voyages at all".

10. Mr. Plowman referred us to a number of cases suggesting that these established a tariff of four years after trial and that there was nothing in the present case which would warrant departure from that tariff. He submitted that concealment was not a new factor as it was inherently likely that, in almost all cases, the illegal  immigrants would have been concealed on board the vessel.  He submitted further that unseaworthiness was not really a new factor as a number of the cases to which he referred had involved motorized sampans which placed the passengers at considerable risk because of their size and low sea-board.

11. We are satisfied after an examination of the cases cited that they did not take into account as specific elements warranting an increased penalty either the danger that arises by reason of concealment in a closed compartment or that which arises by reason of the unseaworthiness of the vessel. It is true that in The Attorney General v. Chan Kwok Keung & another [1988]1 HKLR 279, the court took into account that the "offences concern some very young children to whom there was a physical risk... ".  It is however clear from a reading of the report that the physical risk was occasioned not by the fact that the children were hidden in a concealed compartment but by the fact that they were being carried on a motorized wooden sampan which was crewed by only two persons.

12. The sealed compartment in which the illegal immigrants were hidden would, we are satisfied, in the event of a real emergency, have been a death trap. Sentencing courts should, we are satisfied, give weight to the following circumstances which have . not, heretofore, played a part in the assessment of sentence:

13. We are satisfied that the sentence of five years after trial indicated in The Queen v. LAM Kon-man (supra) has no application to cases in which the above considerations play a part. Where there is a grave risk to the lives of illegal immigrants, knowingly undertaken for gain, the offence is one of considerably more gravity. We are satisfied that where both of the circumstances referred to above exist, depending upon the nurnber of immigrants involved and the degree of danger, a starting point as high as nine years would be appropriate.  This period is arrived at by adding 2 years for each of the aggravating circumstances to the 5 years indicated in The Queen v.LAM Kon-man (supra). The starting point adopted by the trial judge was, therefore, wrong but only insofar as it was too low and, therefore, produced an excessively lenient sentence. We indicate that we do not think it proper to give any weight to the illegal entry statistics as the indication is that they are presently falling.

14. The application for leave to appeal against sentence is, therefore, dismissed.