HKSAR v. LAM TAI YAU

CACC 599/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 599 OF 1998

(ON APPEAL FROM DCCC 1037/1998)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant was convicted of being a member of the crew of a ship which entered Hong Kong with unauthorised entrants, contrary to s.37C(1)(a) of the Immigration Ordinance, Cap. 115 after a trial in the District Court before H.H. Judge McMahon. He now seeks leave to appeal against his conviction.

2. The facts were very simple. Marine police officers on patrol duties on 31st August 1998 in the Clear Water Bay vicinity observed a fishing vessel. They ordered it to stop but it ignored the order and proceeded to Clear Water Bay Yacht Club with a police vessel in hot pursuit. By the time the officers had arrived the people who had been on board the vessel had already disembarked. Preliminary investigation indicated that these people were illegal immigrants.

3. A few hours later the applicant surrendered himself as having been one of the people who had been aboard the vessel.

4. He was interviewed by police officers and made a cautioned statement in which he admitted that he had performed some of the duties of a member of the crew.

5. The main issue before the Judge was whether in fact the applicant had been a member of the crew of the vessel.

6. The applicant contested the admissibility of his cautioned statement. He made numerous serious allegations against the police officers who had been responsible for him. The Judge conducted a voire dire and was satisfied that the statement had been made freely and voluntarily. In the course of a 15-page judgment the Judge gave detailed reasons why he was so satisfied.

7. The applicant also gave evidence on the general issue. He adopted his evidence on the voire dire and further gave evidence that he had not been a crew member. The Judge rejected this testimony for the reasons he gave.

8. In his application the applicant has again repeated the version of events which was rejected by the Judge. Needless to say we are not retrying this case.

9. We can see no reason to interfere with the Judge's findings. This conviction was in no way unsafe or unsatisfactory and this application is dismissed. As there is no merit in the application we order that 3 months of the time this applicant has spent in custody will not count towards sentence he is serving.