HKSAR v. SULEMAN MUHAMMAD

CACC 113/2017

[2018] HKCA 324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 113 OF 2017

(ON APPEAL FROM DCCC NO 717 OF 2016)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The appellant appeals against a total sentence of 5 years and 3 months’ imprisonment imposed on him by HH Judge Dufton (“the judge”) on 5 April 2017, following his conviction after trial in the District Court on two charges, namely:

(1)  Assisting the passage within Hong Kong of unauthorized entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115 (Charge 1); and

(2)  Endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap 313 (Charge 2).

2.  The appellant was granted leave to appeal against sentence and a legal aid certificate by the Single Judge[1] on 5 December 2017.  He was refused leave to appeal against conviction.  He has not pursued his appeal against conviction.

The prosecution case

3.  In the morning of 25 May 2016, a sampan with an outboard motor was observed entering Hong Kong waters and travelling towards Hong Kong International Airport[2]. On board were the appellant together with twenty‑four other unauthorized entrants, all of Pakistani nationality.  The sampan was intercepted within Hong Kong waters by a police launch and the appellant and the other twenty‑four unauthorized entrants were all arrested.  At the time of interception, the sampan was being steered and controlled by the appellant.

4.  The prosecution case in respect of Charge 1 was that, by steering the sampan within Hong Kong waters, the appellant had assisted in the passage within Hong Kong of the unauthorized entrants.

5.  The said sampan was not equipped with fire‑fighting appliances, approved life‑saving appliances or navigation lights for night navigation, thus endangering the safety of others at sea.  These deficiencies formed the basis of Charge 2.

6.  The defence case in summary was that the appellant did not assist the passage of anyone within Hong Kong and that the prosecution had failed to prove the twenty‑four other persons were unauthorized entrants.

7.  The appellant did not testify nor did he call witnesses. Instead, he relied on his video-record of interview (“VRI”) to advance the defence that he had only assumed control of the sampan out of necessity after the original mainland Chinese coxswain had jumped into the water and swum to another larger wooden boat, from which the appellant and the other twenty‑four passengers had been disgorged.  In these circumstances, he was forced by the exigencies of the situation to take control of the sampan in order to preserve the safety of himself and the other occupants[3].

The judge’s findings

8.  In respect of Charge 1, the judge rejected the appellant’s explanation as to why he found himself steering the sampan; an explanation which had not been tested in cross‑examination.  He said[4]:

“54. … I do not find credible the defendant’s explanation that he steered the sampan because people were crying after the Chinese man who brought them to the sampan jumped in the sea and swam back to his boat. I find inherently improbable that the person taking them to Hong Kong would at any time jump in the sea and swim back to his boat.

55. I am satisfied no weight is to be attached to the defendant’s explanation that he steered the boat because others were crying after the man who brought them to the sampan jumped in the water and swam back to his boat, which explanation was not made on oath, has not been repeated on oath and has not been tested by cross-examination (see HKSAR v Wong Ka Wah).

56. I am satisfied so I am sure on the evidence the only inference to draw is that arrangements were made for the defendant together with the other twenty‑four persons to be taken by boat near to Hong Kong waters where they would be transferred to a sampan which the defendant would steer to Hong Kong.  By steering the sampan in Hong Kong waters in the direction of the airport the defendant was assisting the passage within Hong Kong of the twenty-four persons on the sampan.”

9.  In respect of Charge 2, the judge found that as coxswain, the appellant had navigated the sampan when it was not suitable for operation given the deficiencies referred to above.

Mitigation

10.  It was said in mitigation that the appellant had a clear record and had come to Hong Kong from Pakistan for political reasons. It was claimed that he had previously been shot in the leg, as a result of which he had been in hiding since 2011.  The judge was urged to adopt a lower starting point of 4 years’ imprisonment, since the appellant could not be said to be the captain of the vessel or the person in charge of the enterprise.

Reasons for sentence

11.  The judge, whilst noting what had been said on the appellant’s behalf, pointed out that he had also told the police that he came to Hong Kong for work.

12.  He considered that the correct starting point for such an offence, where the defendant was the captain of the vessel or the person in charge of, or assisting in, the operation or organisation of the passage of unauthorized entrants, was 5 years’ imprisonment[5].

13.  The judge held that, while the appellant may not have been involved in the arrangements for the passage of unauthorized entrants to a position close to the waters of Hong Kong (in the larger wooden vessel), having transferred to the sampan, he was the person in charge of the sampan for its passage in Hong Kong waters with 24 unauthorized entrants on board.  Accordingly, he was satisfied that 5 years’ imprisonment was the appropriate starting point.

14.  He then enhanced the starting point for Charge 1 by 3 months’ imprisonment, given the absence of relevant safety equipment[6].  He was satisfied that the sampan was not suitable for sailing, there being no fire extinguishing installation on board and the 23 life jackets on board not being of the approved type.

15.  As for Charge 2, the judge noted that the interception of the sampan did not involve a chase and that the appellant had stopped the boat when signalled to do so.  Moreover, the sampan could not be said to be unseaworthy.  The judge adopted a sentence of 9 months’ imprisonment in respect of Charge 2 which, in view of the aggravated element in his sentence on Charge 1, he ordered to run wholly concurrently with the sentence on that charge.

Grounds of appeal

16.  Mr Bullett, on behalf of the appellant has advanced two grounds of appeal.  First, it is said that the appellant should not have been treated as though he was in charge of the vehicle, meriting a starting point of 5 years’ imprisonment, when all he had done was to steer the vessel in the absence of any captain or crew member.  He pointed out that it was the prosecution’s case that the appellant had no relevant experience or qualification for navigation.  Furthermore, he had claimed in his VRI that he had paid US$2,500 for his passage to Hong Kong; and no money was found on him consistent with his being paid cash for playing a responsible role in the enterprise.

17.  Mr Bullett further submitted that the judge’s rejection of the appellant’s account that the mainland Chinese coxswain had swum back to the larger wooden boat as inherently improbably did not mean that there must have been a prior arrangement that the appellant should take over control and steer the sampan.

18.  Secondly, it was submitted that, since the appellant had merely steered the sampan when the coxswain decamped for the larger wooden boat, he could not be said to be responsible for the factors aggravating the offence.

Respondent’s submissions

19.  Ms Vinci Lam, on behalf of the respondent, relied on the decision in R v Wong Yin Lung[7]for the starting points for sentence of defendants taking up different roles in assisting unauthorized entrants.  She submitted that the appellant, however he came to be holding the tiller of the boat so as to steer it, was in control of the boat. He had admitted in his VRI that he had steered the sampan for 5 to 10 minutes before being intercepted.  Since he was not under the orders or control of anyone, he should be regarded as the one in charge of the vessel, for which a starting point of 5 years’ imprisonment was appropriate.  The absence of evidence of benefit did not diminish the appellant’s actual and active involvement.

20.  It was further submitted that even if the circumstances of aggravation should not be attributed to the appellant as someone who had volunteered to steer the sampan, Charge 2 was a free‑standing offence and the judge would have been entitled to order the sentence for that offence to be served whole consecutively to the sentence on Charge 1.

Consideration

21.  This is a very unusual set of facts.  Firstly, the appellant, albeit undoubtedly steering the sampan, was himself one of 25 Pakistanis attempting to enter Hong Kong unlawfully.  It was not a case, as in many of the authorities, of a so‑called “snakehead” from the mainland (or, indeed, from Hong Kong or elsewhere) who, for reward, was bringing illegal immigrants into Hong Kong by boat.

22.  Secondly, the circumstances of his steering the boat were not inconsistent with the appellant voluntarily taking up the tiller of the sampan after the transfer of the unauthorized entrants (including himself) from the larger wooden boat to the sampan just outside Hong Kong waters.  We appreciate that the judge attached no weight to the appellant’s explanation, upon his arrest and in his subsequent VRI, that he came forward to steer the sampan because others in the boat were distraught when it began to roll precariously after the mainland Chinese coxswain abandoned the sampan, jumped into the sea and swam back to the larger wooden boat.  That explanation may well have been exaggerated by the appellant in his answers under caution.  At the same time, however, it does not necessarily mean that the appellant did not take it upon himself to steer the sampan after he and the other 24 unauthorized entrants had been transferred from the larger wooden boat; a transfer he may not have known beforehand would happen.  Nor does it suggest that there was some sort of prior arrangement that he would act as coxswain of the sampan.

23.  Indeed, the judge found as follows in his reasons for sentence[8]:

“The passage to Hong Kong involved two distinct parts. First the passage close to the waters of Hong Kong and second the transfer to a sampan for the passage within Hong Kong waters. Whilst the defendant may not have been involved in the arrangements for the first part of the passage, he was the person in charge of the sampan for the passage in Hong Kong waters.”

This finding necessarily means that we cannot assume that the appellant was part of the organisation which brought the 25 Pakistanis (including himself) to the boundary of Hong Kong waters in the larger wooden boat (the first part); and it leaves open how he came to be steering the sampan once it entered Hong Kong waters (the second part).  We simply do not know how he, as one of 25 Pakistanis on board, came to have his hand on the tiller at the time the sampan was intercepted.  Even if his account in his answers under caution was rejected, it does not mean that there was any pre‑ordained arrangement that he would assume the control of the sampan after transfer of the 25 unauthorized entrants from the larger wooden boat.

24.  None of the other 24 unauthorized entrants was called as a witness to say that the appellant played any greater role in this operation than that which he described himself.  Had someone “pointed the finger” at the appellant as one of the organisers of this expedition, his position would have been very different than it was.  Or had some significance been attached to his arrival in the mainland by air (together with two others), in advance of the remaining 22 persons on the sampan who perhaps travelled overland, it might have been possible in conjunction with his role as coxswain to draw an inference that he was one of the organisers of this enterprise. However, there was no such evidence beyond the fact that the appellant and two others had arrived by air from Karachi in the mainland (we do not know where) on 16 May 2016.  We know nothing about the prior movements of the other 22 Pakistanis on board the sampan.

25.  We do know from the evidence that originally the Marine Police observed that there were two boats (the sampan and the larger wooden boat) stopped alongside each other outside Hong Kong waters.  The sampan then left the other boat, which subsequently returned to the mainland, and entered Hong Kong waters before being intercepted.  It is not possible on these facts to say, and the judge did not find, that the appellant was one of the organisers of this expedition, or that it was part of the original plan that he would take over the steering of the sampan as soon as all the passengers were transferred from the larger wooden boat.  There is, therefore, nothing to gainsay his claim that he volunteered to steer the boat, even if he did not volunteer in the circumstances he described in his answers to caution upon arrest and his VRI.  Indeed, it is perfectly feasible on the facts as we know them that, in order to avoid detection and arrest, the mainland Chinese “snakehead” took the 25 Pakistanis to the border of Hong Kong waters, transferred them to a sampan and told them to make their own way to Hong Kong.

26.  The question remains, in the absence of any finding that the appellant was one of the organisers of this expedition, but given that he steered the sampan from the time everyone was transferred from the larger wooden boat onto the sampan to the time it was intercepted, how his role is to be classified for the purposes of sentence.  In our judgment, the appellant’s actions were tantamount to those of a crew member who takes it upon himself to act as coxswain in steering or piloting a vessel in the absence of anyone else to do it.  Though it is perhaps unfortunate for the appellant that he decided to do what he did, nevertheless public policy demands that anyone must be deterred from steering boatloads of unauthorized entrants through the waters of Hong Kong.

27.  We should say that we have not found it necessary to resort to the presumption in section 37K(2) of the Immigration Ordinance to find that the appellant was a member of the crew, although the presumption, in the absence of evidence to the contrary, supports our conclusion.

28.  The appellant’s classification as a crew member has two effects on his sentence.  First, the starting point should have been commensurate with that of a crew member and, therefore, 4 years’ imprisonment rather than 5 years’ imprisonment: see R v Wong Yin Lung[9].  Secondly, in the peculiar circumstances of what we are prepared to assume was the appellant’s voluntary assumption of the role of coxswain a few minutes before the sampan was intercepted, it is difficult to see why the starting point should be enhanced for aggravating features he can have had no knowledge of or responsibility for, in respect of a boat he had never had anything to do with until a few minutes earlier.  It is not even clear that he knew that the unauthorized entrants would all be disgorged from the larger wooden boat to the sampan in the sea at the territorial border between the mainland and Hong Kong.

29.  We note that there is a conviction under Charge 2, the propriety of which has not been argued before us.  That offence permits a defence of ‘reasonable excuse’, where a coxswain has otherwise endangered, or caused to be endangered, the safety of others by navigating a vessel which was not suitable for operation.  Whether the appellant’s conviction on this charge might be open to question in light of our comments as to the appellant’s knowledge of the deficiencies of the vessel on Charge 1, will depend on whether proof of his knowledge of the deficiencies rendering the vessel unsuitable for operation is necessary under section 72 of the Shipping and Port Control Ordinance.  The appellant’s mens rea in respect of an offence under section 37D(1)(a) of the Immigration Ordinance may well be different from the mens rea required under section 72 of the Shipping and Port Control Ordinance.  However, it is not necessary to engage this issue.  Furthermore, we cannot see that any ‘reasonable excuse’ was realistically open to the appellant in the circumstances.  The matter has not been argued before us and, in any event, such sentence as was passed on Charge 2 was made wholly concurrent with the sentence on Charge 1.

30.  Had the appellant been a “snakehead” in the full, pejorative sense of that term, none of our concerns in respect of the sentence on Charge 1 would apply.  The appellant would be undertaking a perilous expedition to bring 24 unauthorized entrants into Hong Kong for reward in a vessel that he must be taken to know is deficient.  That is not the case before us.

31.  In the circumstances of this very unusual case, we shall reduce the sentence of 5 years and 3 months’ imprisonment on Charge 1 to 4 years’ imprisonment.  The sentence on Charge 2 will be left untouched to run concurrently with the sentence on Charge 1.  Accordingly, the overall sentence on the appellant is reduced from 5 years and 3 months’ imprisonment to 4 years’ imprisonment.