THE QUEEN v. HO SIU LUN AND OTHERS

IN THE COURT OF APPEAL

1986 No. 257
(Criminal)

BEWEEN

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JUDGMENT

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Power, J.

1. The applicant in this matter was charged that, with-two others, on the 14th January 1986 he assisted the passage to Hong Kong of seven unauthorized entrants. After trial in the District Court, was found guilty of that charge and now seeks leave to appeal against that conviction.

2. The evidence at the trial revealed that on the afternoon of 14th January 1986 officers of the Small Boat Unit sighted a motorized sampan off Lau Fau Shan in Hong Kong waters. Three police officers boarded the vessel and found that the 1st defendant was steering and that the present applicant, who was: the 2nd defendant, and the 3rd defendant were seated on the deck. When asked to produce an identity, card the applicant produced an identity card which belonged to another person. The police officers then opened the hatch and found the seven illegal immigrants in the hold.

3. The applicant was not seen to do anything by the police officers who said that they had simply seen him seated at the deck. At the trial three of the illegal immigrants and one police officer gave evidence. No further police officers were called after Mr Cheung, who was then appearing for the defendant, asked no questions of the police officer who had been called and stated that he did not wish to cross-examine any other witnesses. The Court explained to the applicant his right to give evidence or to remain silent and after consultation Mr Cheung, announced that the applicant would not give evidence or call witnesses. The Court then ascertained directly from the applicant that he did not wish to give evidence.

4. The only evidence about the applicant prior to the interception by the police officers was given by a Mr Tang Chow-ming who said that he saw the applicant at the pier before boarding. There was, therefore, no direct evidence of any act by the applicant to assist the passage of the illegal immigrants. The trial judge was nonetheless satisfied to infer from the uncontradicted and unchallenged evidence that the applicant was "on that vessel in a role other than that of a mere passenger".

5. In his grounds the applicant relies upon the fact that there was no evidence of any positive act by him. He complains also that he did not give evidence because of advice from his solicitor and wishes before this Court to rely upon facts which he says he would have advanced had he given evidence. His rights were explained to him, indeed the trial judge was at pains to ensure that he did not wish, to call or to give evidence, and it would be quite wrong to allow him, at this hearing, to resile from his election. The matter must be dealt with upon the basis of the evidence that was before the trial judge.

6. The question to be resolved is whether on the basis of that evidence the trial judge could properly be satisfied beyond reasonable doubt that the applicant was assisting the passage of illegal entrants and not a mere passenger. While the facts give rise to grave suspicion a majority of us are satisfied, having given them careful consideration, not such as could properly have been left to a jury had it been a jury trial.

7. This application will be granted and treated as the hearing of the appeal which will be allowed and the conviction quashed.

8. We now turn to deal with two applications for leave to appeal against sentence. I will not repeat the facts which have already been fully set out in the successful appeal against conviction. It is argued by Mrs. Spruce who appears on behalf of both applicants that, in this case, there was no substantial gain expected by the applicants as there was in the unreported case of R. v. Law Han[1]. In that case the sentence against which the applicant was seeking leave to appeal was imprisonment for 4 years.

9. The applicants in the present case state that the only reward they were to receive was in the case of the 1st applicant a free passage and in the case of the 2nd applicant a passage at a reduced fee. If we approach the matter upon the basis of their story, it is clear that in order to obtain a free passage they were prepared to ally themselves to this enterprise by acting as crewmen. This enterprise was being carried out in an organized way and it would fly in the face of common sense to suggest that it was not being carried out in order to obtain a substantial benefit for someone. That being the case the applicants must be dealt with upon the basis that they were taking part in an enterprise being carried out for substantial gain. We are satisfied that 4 years would have been a proper sentence in those circumstances and that the judge having taken into account the pleas of guilty was right in imposing a sentence of 3½ years in each case. The applications for leave to appeal are dismissed.

[1]  Crim. App. No. 101 of 1983