R. v. KUNG KIN KWONG

IN THE COURT OF APPEAL

1995, No. 249
(Criminal)

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J U D G M E N T

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Ching, J.A. (delivering the judgment of the Court):

1. In the early hours of 22nd August, 1994, the police intercepted an unlit motorised sampan in Deep Bay. The prosecution evidence was that when the police fired an illumination flare the sampan turned back but was eventually stopped by the police at which time the applicant was seen to be steering the vessel. There were six other men on board, being the six particularised in the charge, all of whom it was admitted were unauthorised entrants. Upon being asked, the applicant said that he had been promised $500 by a person called "Ah Dik" to convey these people into Hong Kong. The applicant was then charged with being a member of the crew of a ship which entered Hong Kong with unauthorised entrants on board. He pleaded not guilty but was convicted and sentenced to three years and two months' imprisonment. He now seeks leave to appeal against both conviction and sentence.

2. The applicant gave evidence at his trial. He claimed that he was not a member of the crew but that he was an unauthorised entrant himself. He admitted to having been at the steering mechanism of the sampan but claimed that the man steering the vessel had jumped overboard. The applicant said that he went to the steering post because he realised they were in danger of overturning. In cross-examination, he claimed that he paid $1,000 to Ah Dik for the purpose of being brought to Hong Kong. In essence, he repeated the same story to us today.

3. The judge below described this story as fantastic and rejected it. She was entitled to do so. She accepted the evidence of the prosecution and again she was entitled to do so. Nothing has been said which would entitle us to interfere with the conviction and the application for leave to appeal against conviction is refused.

4. The applicant was 20 years old. The judge below took this into account. He had pleaded not guilty and was therefore not entitled to any discount for a plea of guilty. The judge below was fully justified in imposing the sentence that she did, and the application for leave to appeal against sentence is also refused.