THE QUEEN v. NG FOK SHUN AND ANOTHER

BETWEEN

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JUDGMENT

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Fuad, V. -P. (giving the judgment of the Court) :

1. On 11th July last year Ng Fok Shun and Ng Chun Leung, who were the 5th and 7th defendants being tried before Judge Evans in the District Court, were convicted on their pleas of guilty of being members of the crew of a ship which had entered Hong Kong waters with unauthorized entrants on board contrary to section 37C(1) (a) of the Immigration Ordinance, Cap. 115.

2. The two applicants, who are aged respectively 28 and 24, were jointly charged with six other men and after some four days into the trial these two men decided to plead guilty. They were each sentenced to 3 years' imprisonment and they now seek leave to appeal against the sentences imposed.

3. What happened was that on night of 3rd/4th March 1989 a police launch intercepted a vessel near a dockyard in Tsuen Wan. Eight men were found hidden inside two concealed compartments of the vessel, and of the 20 persons on board only eight were crew members, the remaining 12 being illegal immigrants.

4. The learned judge gave detailed reasons for the sentences he imposed. After reviewing the facts he remarked that the two men who are now before us "were more than simple crew on the vessel" for there had been cogent evidence given before the pleas of guilty had been entered to show that they had been actively engaged in the enterprise of bringing particular prospective illegal immigrants to the embarkation point, although there was no evidence that they had received any money themselves.

5. Ng Fok Shun had met two of the illegal immigrants and brought them by vehicle from the country to the embarkation point and Ng Chun Leung had actually agreed a price of $2,600 Reminbi with one of the witnesses who had given evidence.

6. The judge's remarks about the men's roles formed the basis of the first complaint made by Mr. McLanachan on behalf of the applicants. He pointed out that they were charged under section 37C(1) (a) of the Immigration Ordinance which punishes members of the crew of a vessel which enters Hong Kong waters with unauthorized entrants on board, and yet the judge had imposed the sentences upon the basis that they were "more than simple crew". Had that been so, Mr. McLanachan suggested, they should have been charged under section 37C(1) (c) which covers persons who participate in making arrangements to enable the voyage on which unauthorized entrants boarded the snip to take place. With respect, we see nothing in this point. The punishment provided for by the legislature, whether a person is convicted under paragraph (a) or paragraph (c) of subsection (1) of section 37C, is precisely the same, and the judge was right to take into account the particular part played by individual crew members if there was evidence to show this.

7. Mr. McLanachan also submits that the judge should have given the applicants a discount for being first offenders. The judge noted as follows in the course of his reasons: "Naturally none of the accused have a record in Hong Kong." There is, at present, as far as I know, no way of knowing whether or not a person who is a member of the crew of a boat from Mainland China has or has not a criminal record in the Peoples' Republic and the judge's remark regarding the likelihood of someone, in these circumstances, having a criminal record in Hong Kong seemed to us to be perfectly justified.

8. What is important to consider is whether the sentences have been shown to be manifestly excessive. The cases, which are all too familiar to us, show that the 3 years' sentences imposed are well within the range of sentences approved by this Court even where first offenders are involved and therefore there are no grounds for interfering with the decision made by Judge Evans that day. The applications are, therefore, refused.