THE QUEEN v. KWOK KAM YUNG

IN THE COURT OF APPEAL

No.365 of 1995
(Criminal)

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JUDGMENT

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Wong, J (giving the judgment of the Court):

1. In the early hours of 24^th November 1994, Marine police officers on patrol in Deep Bay intercepted a Chinese wooden vessel. It had no navigation lights and was heading in the direction of Mainland China. On board were the applicant who was D2 in the court below, Wong Kam-fat, D1 and another man, Man Wai-kau. 32 boxes of computer parts were also found and seized. All three were arrested. Man Wai-kau subsequently pleaded guilty to one charge of using an identity card relating to another person and a charge of remaining in Hong Kong without authority.

2. The applicant and D1 were charged with (1) assisting in the passage within Hong Kong of an unauthorized entrant and (2) attempting to export unmanifested cargo. They were tried before Deputy Judge Chung in the District Court. D1 pleaded guilty to the second charge and was convicted of the first charge whilst the applicant was found guilty of both charges after trial. The applicant was sentenced to 2 years and 9 months’ imprisonment on the first charge and 12 months on the second charge, to run concurrently. A suspended sentence of 6 months imposed on 6^th April 1994 in connection with a charge of possession of dutiable goods was activated and ordered to be served consecutively, making a total sentence of 3 years and 3 months.

3. Against this sentence she now seeks leave to appeal on the grounds that it is too severe and that she has to support her family. Before us she pleaded for lenience. She told us that her husband was injured in an accident and the entire family consisting of her husband, two young children and herself depended on her for support. She expressed remorse and assured us that she would not re-offend. We are not impressed by her assurance because she committed the present offences during the currency of a suspended sentence imposed on her in respect of a similar offence.

4. We do, however, take the view that this case differs from the usual cases of assisting the passage of unauthorized entrants that have come before the courts. This unauthorized entrant was being taken back to the Mainland and his presence on board the vessel was merely incidental to the smuggling operation undertaken by the applicant and her accomplice. We are satisfied that the sentence of 2 years and 9 months on the first charge is manifestly excessive in these circumstance. Accordingly, we set it aside and a sentence of 6 months is substituted. The sentence of 12 months on the second charge and the suspended sentence will remain undisturbed. All the three sentences will be served consecutively and this results in a total sentence of 2 years.

5. Treating the application for leave as the hearing of the appeal, we allow the appeal to the extent indicated.