HKSAR v. WONG CHUNG

CACC 279/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 279 OF 2007

(ON APPEAL FROM DCCC NO. 1006 OF 2006)

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J U D G M E N T

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Hon Beeson J (giving the Reasons of the Court):

1.  The Applicant, who was the 1^st Defendant at trial, was convicted in the District Court before Judge Chua, of one charge of Assisting the passage to Hong Kong of a Conveyance which carried an unauthorised entrant, contrary to section 37 (D)(1)(a) of the Immigration Ordinance, Cap.115.  On 3 August 2007 he was sentenced to 4 years 3 months’ imprisonment.

2.  On 20 August 2007 the Applicant filed a notice of application for leave to appeal against conviction, advising that he had decided to appeal against his conviction after thorough and careful consideration.  On 14 December 2007 he was refused leave by a single judge.

3.  On 10 March 2008 the Applicant filed a notice of renewal of application after refusal by a single judge, out of time.  On 23 June 2008, he filed three grounds of appeal against conviction.

4.  The facts, which appeared from the evidence at trial, were that police had intercepted a motorized sampan driven by the Applicant, after it was seen to sail from mainland waters towards Deep Bay in Hong Kong. Another man, who was the 2^nd Defendant at trial, was also on board the sampan.

5.  The Applicant produced a sampan licence and 2 boatman’s cards, his own and another supposedly belonging to the 2^nd Defendant.  The Applicant told the police that he had come to catch fish and crabs.  The officers did not see any fishing paraphernalia or any fishing catch on the sampan.  The Applicant told the police that he had put nets out, although he did not tell the officers where they were.  The officers were unable to find them despite a search.

6.  In evidence the Applicant said he had gone fishing the day before his arrest, with his cousin Wong Shui-lun, who bore a resemblance to the 2^nd Defendant.  He put out three nets at Deep Bay intending to draw them up the next day.  On the following day his cousin was not free, so he asked his friend, the 2^nd Defendant, to help.  He said he had no intention to fish in Hong Kong waters, nor had he realised that he had strayed into Hong Kong waters when he went to pick up his second net.

7.  When the police arrived the Applicant told them that the 2^nd Defendant was his friend and that they had come to pull up the nets.  He claimed the police told him and the 2^nd Defendant to make their own way to the police barge nearby and they did so.  He was arrested only when he reached the barge.  Thereafter he said he was restrained with straps and an officer gave him four slaps on the face when he asked permission to haul up his nets.  Those allegations were not put to the police witnesses when they were cross-examined.  He alleged that the police officers had removed all the fishing paraphernalia and catch from the sampan.

8.  The Applicant’s three grounds of appeal were first that it was not possible to sail so near the shore, as the police alleged he had, because it was low tide and the depth of the water at 300m from the shore made it impossible for the vessel to sail in.  That matter was dealt with at trial by PW3 (who had 24 years Marine Police experience); he said conditions were such that the sampan could have sailed straight to shore.

9.  Nor was it difficult to walk at low tide in mud to the shore.  PW2, another police officer, considered that the sampan could go safely in to at least 50m from shore.

10.  The second ground was the allegation that the police officers had removed all fishing paraphernalia and catch from the sampan in order to frame the Applicant.  Three police officers and also the exhibits officer, PW4, told the court that there was no such paraphernalia on board.  Clearly the judge accepted the prosecution evidence on this point.

11.  The third ground of appeal was a complaint that the Applicant’s sentence was longer than he expected.  We note that this was the first time the Applicant has referred to his sentence - at no stage had he filed an application for leave to appeal against sentence.

12.  The maximum sentence for this offence is $5 million and 14 years’ imprisonment on indictment and $350,000 and 3 years imprisonment on summary conviction.  An appropriate starting point for sentence for an offence of this nature is 5 years’ imprisonment, with an increase in that starting point if the vessel was found to be unseaworthy or unfit for navigation (See: HKSAR v Yeung Wui and Ors [2005] 1 HKC 646).  The sampan had been examined by a Marine Inspector who found it was inappropriately equipped for navigation at sea.  On that basis the sentence of 51 months imposed by the judge could be seen as lenient.

13.  After considering the Applicant’s submissions and having noted the history of the case we find no merit in this renewal of application for leave to appeal.  No material has been put before us that was not also put before the single judge on 14 December 2007.

14.  The reasons given by the Applicant for filing this application out of time are neither cogent nor compelling.

15.  This application for leave to appeal against conviction out of time is dismissed.

16.  As there was no merit in the application, pursued after leave had been refused, we gave the Applicant an opportunity to address us before making an order, pursuant to section 83W of the Criminal Procedure Ordinance, Cap. 221, that 2 months of the time the Applicant has spent in custody pending this hearing will not be counted towards the sentence he is presently serving.